What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?
I learned that Washington never told a lie.
I learned that soldiers seldom die.
I learned that everybody’s free,
And that’s what the teacher said to me.
That’s what I learned in school today,
That’s what I learned in school.
What did you learn in school today,
Dear little boy of mine?
Pete Seeger and a friend
What did you learn in school today,
Dear little boy of mine?
I learned that policemen are my friends.
I learned that justice never ends.
I learned that murderers die for their crimes
Even if we make a mistake sometimes.
What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?
I learned our Government must be strong;
It’s always right and never wrong;
Our leaders are the finest men
And we elect them again and again.
What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?
I learned that war is not so bad;
I learned about the great ones we have had;
We fought in Germany and in France
And someday I might get my chance.
If language was merely a communicative tool it would pack a much lighter emotional punch (J Edwards, 2003)
On the 17th January the Committee of Experts (COMEX) published the Fourth Report on the application of the European Charter for Regional or Minority Languages (ECRML) by the United Kingdom. In it, the COMEX chastised the UK Government and the Northern Ireland Assembly (NIA) for the lack of progress made in relation to the protection and promotion of the Irish language in Northern Ireland since the previous monitoring round and also for the complete failure to comply with the reporting requirements under Art.15 of the Charter. On the basis of the findings of the Fourth Report, the Committee of Ministers (CoM) have now recommended that the authorities of the United Kingdom “as a matter of priority … adopt and implement a comprehensive Irish language policy, preferably through the adoption of legislation providing statutory rights for Irish speakers.”
This latest recommendation offers an opportunity to revisit the law, language and identity debate in Northern Ireland and to consider the extent to which language as a marker of cultural identity continues to be contested. Notwithstanding the commitments made in the Belfast Agreement – to peace, to equality, parity of esteem and indeed, “respect for linguistic diversity”, it is now clear that expressions of culture and identity, whether through voice or symbols continue to be a source of deep rooted conflict in Northern Ireland. The recent flag debate and the violence that ensued illustrates this point well. In essence, cultural differences central to the ‘traditional’ conflict in Northern Ireland remain salient. More broadly, the discussion here can be viewed in light of the NIHRC’s current project exploring the protection and promotion of the human right to culture in the context of societies emerging from conflict.
Background
Readers may recall that as part of the St Andrews Agreement in 2006 (to restore devolution) the United Kingdom made a commitment to “introduce an Irish Language Act reflecting on the experience of Wales and Ireland and work with the incoming Executive to enhance and protect the development of the Irish language” (Annex B). This has, as we now know, never transpired. Yes, two consultation processes on the introduction of an Irish language Act followed in – 2006 and 2007 respectively but when government devolved to Northern Ireland in May 2007, the Language Act ‘issue’ then became a matter for the Northern Ireland Assembly. At the time, much criticism from supporters of Irish language legislation was levied at the British Government for ‘closing the window’ on Westminster legislation when it was quite clear that should it become a devolved matter, unionist parties would seek to block any such legislation. This is precisely what happened and since then the Irish language issue and language more generally has become deeply embedded in identity politics.
Following the two consultation processes, then Minister for Culture, Arts, and Leisure Edwin Poots decided against introducing language legislation in October 2007. In his view, it would be unwise to introduce a Language Act because of, “insufficient community consensus, potentially significant costs and a real possibility that legislation could undermine good relations”. His successor, Gregory Campbell also declined to introduce an Act in 2008. According to Campbell, the responsibility of a language Act belonged to central government, and it was something the “British Government and the Government of the Irish Republic committed themselves to” – his party did not.
It is in this political context that demands have also been made for greater protection of the Ulster Scots language in Northern Ireland. Ulster Scots is recognised as a language under the ECRML but only as a Part II language meaning that the UK authorities and the devolved administration have not agreed to undertake any specific undertakings, under Art.8. McDermott notes that the “potential encroachment of Irish culture in the public space has been perceived in some quarters as a loss for the unionist community”. For many unionists, an increase in Irish language rights is seen as a direct threat and attack on their culture and identity. In response, Ulster Scots has been mobilized by some unionists as a badge of their cultural identity and as a retort to the demands for increased legislative status for the Irish language.
More recently, the appointment of Carál Ní Chuilín (from the Sinn Féin political party and supporter of Irish language matters) as Minister for Culture, Arts and Leisure has seen greater support for Irish language policy. The Minister has also sought to work towards promoting Ulster Scots under her remit as can be seen from the establishment of MAGUS. With respect to Irish, she declared, soon after her appointment, that she would present proposals to the Northern Ireland Assembly for an Irish Language Act and a language strategy. In an attempt to depoliticise ‘language’, the Minister claimed during the launch of a Draft Language Strategy that the purpose “is to make the Irish language more accessible, to promote Irish in a positive and progressive way and, in doing so, break down barriers and negative preconceptions affecting the language”. The hostility towards any increased protection, however, remains steadfast. Unionist political parties have reminded the current Minister that any Irish language Bill will need Executive and Assembly approval and according to Michelle McIlveen (DUP Party), “it won’t get it”.
Beyond the COMEX, it should also be noted that the NIHRC, the UN CESCR and the Advisory Committee of the FCNM have all called for the adoption of legislative protection for the Irish language in Northern Ireland but again those statements and recommendations have fallen on deaf ears both in Westminster and Stormont.
The struggle in accommodating culture, identity, language…
In terms of wondering what may come of this latest COMEX Report and recommendation from the CoM, it strikes me that very little will change and the political wrangling and polarisation of ‘language’ will continue. Though often framed as a fiscal related argument, it becomes clear that arguments rejecting increased legislative protection for the Irish language are firmly connected to cultural identity. That will not change. As noted by McEvoy, even after signing peace agreements, groups often continue to “rely on a system of meanings and repositories of memories to interpret both the conflict and the new political framework”. The Fourth Report and the clear recommendation from the Committee of Ministers do bring an authoritative statement about obligations on UK authorities and devolved administration to introduce language legislation to give effect to the promises made in the St Andrews Agreement and the commitments made under the ECRML. However, in essence, that is all the Committee can do. No individual rights arise from the ECRML nor can any real sanctions be imposed.
As I have noted elsewhere, I support the idea of increased legislative protection for the Irish language in Northern Ireland and on that basis statements from the COMEX are to be welcomed. And yet, the sceptic in me and, more generally, my interest in exploring rights debates through a lens of substantive equality, lead me to wonder whether a language legislative or rights framework in the current political context in Northern Ireland can ever be achieved. And if some measure is to be introduced, whether it could be more destructive than constructive both to the peace process and goodwill towards the language? Can a rights/legislative framework, especially one that embodies language and identity be achieved in any true sense within the consociation – power sharing model in Northern Ireland? Colin Harvey and Alex Schwartz in Rights in Divided Societies (Chapter 6) have deliberated at length about the challenges posed by the model adopted in Northern Ireland in the accommodation of difference and the fulfilment of human rights. On the Bill of Rights discussion they write (p.125):
“[I]n a deeply divided society. A would be-bill of rights must also pass through a kind of double ‘veto-gate’; the bill must secure sufficient support from (at least) two distinct sets of political elites whose attitudes and interests will have been shaped by very different experiences”.
Some final thoughts
Thus, it could be some time (if ever) before consensus is reached on Irish language legislation in Northern Ireland. (That is, unless the UK authorities will take some kind of lead on the issue – which is doubtful!). Depending on the consultation process currently under way, some consensus may be reached on an Irish language strategy, but even with that many difficulties lay ahead in terms of practical application. In his discussions of language policy more generally, Francois Grin talks about the need for “capacity, opportunities and desire”, in order for any language policy to be effective. It is difficult to envisage, that those tripartite language policy elements can be achieved in the continuing climate of cultural contestation in Northern Ireland.
It appears to me that the language debate in Northern Ireland exposes in a very real way the gaps between the ideals of a rights and equality framework for post-Belfast Agreement governance and the reality of the cultural conflict and contestation that remains steadfast and a challenge to establishing a human rights agenda across, and for all, sectors of the community in Northern Ireland.
I read your essay Archiving Burroughs: Interzone, Law, Self-Medication with attention and appreciated, as usual, the way you manage to link narrative, law and space all together. I do think however that we should keep this text for a little bit later in our conversation as its specificity might make us miss the bases of the discussion that we would like to have about law and architecture. In this regard, I would like to ingenuously start by stating some obvious facts which are always good to remember for such a discussion.
Law, understood as a human artifact, constitutes an ensemble of regulations which have been explicitly stated in order to categorize behaviors in two categories: legal and illegal. In order to do so, it expects from every individual subjected to its application a full knowledge of its content in order to moralize and held accountable attitudes that are either respectful or transgressive towards it.
Law is undeniably related to space as it requires a given territory with precise borders to be able to implement itself. Nothing easier to understand this fact than to observe in which space one is allowed to smoke and in which one is not. It also includes within this territory smaller zones of exclusion, from the corner of the class room to the penitentiary, in which another form of the law –supposedly a more restrictive one– is applied for individuals who, through an active refusal of specific parts of it, are to be separated from the rest of society. Those individuals, when captured by law enforcer instances, are brought within those zones of exclusion and are being held in them for a given period of time provisioned by law itself.
Many other spaces constitute territories on which law is also different but composed of layers of laws which do not contradict each other. Spaces like schools, offices, factories, hospitals, for example, apply a legal superimposition in order to complement the territorial law with set of rules specifically formulated to optimize their institutional function.
Space itself is not necessarily an artifact, although the designation of borders that delimit it certainly constitutes a human intervention, and probably the first legal gesture that is. Let us consider architecture as the ensemble of human physical modification of its environment. It would probably be useless to wonder whether law invented architecture or if it is precisely the opposite. What we can possibly affirm, however, is that architecture, through its physicality, embodies the immaterial law. This is clear in the case of the zones of exclusion that I was evoking above. The fundamental element of the law of exception applied in them consists in the ban for their subjects to exit their space. In order to implement such a ban, an impermeable architecture needed to be created: it is the invention of prison as a building.
Prisons are the extreme examples of how architecture embodies the law. We are nevertheless surrounded by more domestic cases of architectural enforcement of the law. During a curfew or quarantine, your own house, supposedly so neutral and innocent, can become your own prison. But was this house so innocent anyway? Isn’t the house the material embodiment of a law which integrates private property as one of its components? How to enforce property in a better way than to build impermeable walls on the lines that law abstractly constructed? Architecture, by using the universal “laws” of physics — nobody can cross a wall for example — insures the explicitation of the law which would need to be discursively enunciated otherwise in order to be acknowledged by its subjects.
This vision is however an articulation centered on architecture and I am wondering how the legal theory specialist that you are interprets this relationship. Do you think that there can be a law with no architecture or/and a lawless architecture? If architecture is really the embodiment of the law, can we possibly think of an architecture of illegality?
I very much look forward to reading you on those questions, and on the others that you probably have.
Cordially yours,
Léopold
SECOND LETTER
(Exeter, UK, on August 17th 2012) ///
Dear Leopold,
Lucy Finchett-Maddock
Thank you for your letter dated 12th August, I apologise for my tardy reply but I have been away as you know in India. India, of course being a great example for the themes of architecture and law of which you speak, whereby not only are there plural legal levels of law as a result of the genealogies of colonialism, but so too there are those very clear architectures of law that reveal legal dichotomies, the insides and the outsides, those included and excluded (and of wrath of the common law in particular). Nowhere else has there been such a use of law as a mechanism of legitimated dispossession than in colonial India, with the decentralised despotism of the Raj and their opulent palaces as reminders of their decentralised British power; the acceptance of customary law into a plural legal hierarchy of state law that put the common law as the pinnacle of all might.
When thinking of the role of land and law, and the wall as the boundary, the legal space in which all of the divisions and structures of hierarchy are analogised (or not even analogised, but actualised), there is a reason why one is so struck by architecture as the architect of law – or law as the architect of architecture. Western individual property rights, are based on a presumption that ‘ownership’ of land, the right to design land as one sees fit (or hire a draftsman to follow design instructions), is the right to have exclusive access and possession to that particular geography of land. Thus, and this is taking from the highly influential German jurist Carl Schmitt, law starts and ends with the earth, and is determined through the categorisation and enclosure of the earth where all other phenomenology resides. This intrinsic link between law and architecture is the design of property rights, it is the manipulation of space which acts as a way of keeping something in, keeping a population out. Therefore, architecture lends itself specifically as the embodiment of law, it is the dividing line, the juncture of liminality that is so easily described, and yet the most elusive thing in the world, that which is all order and chaos. It comes together in one coordinate, the coordinate of legal design; the sketchings of the architect.
What struck me recently when I was away in India was how obvious the past, and indeed the future, was expressed within the buildings, and more so within the constant construction going on within the megacityscape where each new wood and cement fixture became another limb of the great living organism that was growing and gurgling as I would veer past in my auto-rickshaw. These were buildings that were not completed yet, that would most probably always remain incomplete as the years of bureaucratic procrastination and judicial protest halt the creation of the flyovers and office blocks.
What I would like to throw in here is a consideration of the role of entropy within law and architecture, and how this can offer a framework through which we can understand the role of law within architecture and architecture within law, and what you might think of this in relation to property, aesthetics as a whole, and law so too.
Take the seething urban mass of Bangalore, a city that only 30 years ago was a quaint retirement destination for local Karnatakan residents and its surrounding states, which since then has become the size of London, with no public transport infrastructure – and is still growing, with an air of toddlerishness that hints to only being a tenth of its potential size. The population has matured its foundations, and the job of producing new living spaces and working spaces have not kept up. There are two types of design, those of the massive land acquisitions and re-mappings that allow for colossal new speedways and airports; and then there are the designs of the slums – both of these architectures of law rely on unplanning, as opposed to planning, and are reactive and emergent in their convergences. This, I would argue, is the entropy of architecture, and therefore entropy of law.
Congestion in Bangalore
Specifically in relation to land law, there is little in the way of actual planning law, and when there is, it is planned with a certain group of elites in mind. The majority of those who live in Bangalore cannot afford to buy cars or motorcycles, and yet there are apparently 1,000 vehicles added to the road day in the city. These are the upwardly mobile Bangalorians who work within IT and are making the most of the burgeoning city and it being known as the ‘Singapore of the South’. Huge land acquisitions are undertaken in order to build in the name of the swelling bourgeoisie. Land acquisition is a common law inheritance and is known in India as ‘eminent domain’. It exists as a stop valve for the state to acquire land for ‘public purposes’, without the permission of those who already live on the land and have rights and attachments to the land. Those who are moved are by and large the architects of law from below, the slum dwellers and impoverished who own little or no legal rights to the land on which they reside. A complex web of common law legacy gives way to a situation whereby land is acquired and new building schemes begin, whilst at the same time architects from below utilise the notoriously slow, but most certainly relevant litigation processes of the courts to try and halt the taking of their homes and the construction of new hegemonies.
These two unplanned movements of law and architecture, the state land acquisition and the litigious rigour of Bangalore’s civil society, operates in an emergent coagulation and one that is realised in the half built pillars and cement covered children on the roadside. These are not complete spaces, but half spaces, spaces that are not aware of how they will end up as a result of the intersection of law in design.
So what does this have to do with entropy? At a very basic level, and one that takes from a traditional thermodynamic view, entropy is the amount of usable energy within a system. The more complex a system becomes, the more energy it uses, and the more it strives towards order, the more disordered it becomes simultaneously. Entropy exists in all systems, those that are alive and those not, as long as they possess enough energy to do work, and even theories on entropy themselves are part of the emergent systems of burgeoning theories on thermodynamism and complexity. Entropy is thus the contradictory premise that the world is rapidly becoming more intricate, requiring more energy to be used within its systemic bounds, marching onwards on a treadmill of a Darwinian perfection and evolution, whilst at the same time, the more complex it becomes, the quicker it moves towards a finality of heat-death. Entropy is therefore the juxtapositioning of order and chaos, which arguably conjures an aesthetics of symmetry, dissymmetry, design and architecture.
Seemingly, order as something that is necessary for the human mind to understand anything. There are those systems that appear ordered, and yet they rely on the dismemberedness of their interior, their genealogy, to exist and continue, considering Michael Buor’s depiction of the structure of New York in the 1950s:
“…marvellous walls of glass with their delicate screens of horizontals and verticals, in which the sky reflects itself; but inside those buildings all the scraps of Europe are piled up in confusion … The magnificent grid is artificially imposed upon a continent that has not produced it; it is a law one endures.”
What does this description of the underbelly of New York tell us of how law affects architecture, and the same vice versa? What can entropy tell us about the seemingly out-of-control cityscape of Bangalore, the planned unplanning and unplanned planning of the architects of law from below and those of the law from above? What is the role of property in this, and indeed aesthetics itself?
At this juncture I am going to go and have some lunch and leave it for yourself to ponder dear Leopold.
Yours,
Lucy
THIRD LETTER
(New York, May 2nd 2013)
Léopold Lambert
Dear Lucy,
It has been (too) long since we last sent each other a letter to think together of the way architecture and the law interact with each other. I apologize for that as it was “my turn” to write to you.
In your last letter, you were reflecting on the strange collision of the Indian eminent domain with what I would slyly call immanent domain that is developed by the slums. You were talking about this collision in Bangalore; I happen to know Mumbai much more as I lived there for a little while but I assume that the two situations are relatively similar for that matter. Both eminent and immanent domains constitute a form of violence towards the law as they both “break” a traditional understanding of what property is about. In the first case, the municipality or the State expropriates a group of people, while in the second one, a group of people claims a piece of territory that does not belong to them to build their dwelling. Two things ought to be noted in this matter. The first one is that, on the contrary of the immanent domain, the eminent domain somehow registers within the legal system even though it seems to contradict the law at first “sight”. The second thing to note is that, while eminent domain unfolds itself on an inhabited territory/building, the immanent domain exists on a land/structure that is either the object of estate speculation or that does not receive enough financial founds to be developed. I know that you are very interested in how the various squats of the world are questioning the legitimacy of our definition of property and I am sure that you have already thought extensively about those two notes.
It is interesting to observe how the eminent domain implements itself in a country like India as it reproduces part of the process of colonization: something from the outside that imposes itself as the new law upon the bodies that happen to be present on the concerned territory. The reminiscence of the colonial era is something that really questioned me when I was living there. Many of the administrative buildings of Mumbai are still the same that were used by the British. I am still wondering today if the continuity it creates is strictly symbolical or if it actively shapes the way this administration is operating. The same question goes for the Rashtrapati Bhavan in New Delhi, the Viceroy Palace that Gandhi wanted to transform into a hospital and that Nehru attributed as the Presidential Palace of the newly independent India. I suppose that there are a multitude of laws that were similarly elaborated during the colonial era and that remained afterward. You are interested in the entropy of law, I suppose that we could remain in the field of physics and talk about its resilience.
What interests us however, is not so much architecture and the law considered separately, even when they are intricate in similar processes of existence, but rather as both part of the same strategy in the organization of a society; I want therefore to go back to this notion of immanent domain as its relationship to the law might be more complex than the one I was describing earlier. In Turkey for example, I read that the police cannot immediately destroy an unauthorized dwelling whose construction has been finished; this kind of dispute has to go to court to be settled. This scenario, because it involves the inertia (some more physics) of the administration that goes with it, is likely to require enough time for the dwelling’s inhabitants to use it for a while. There are therefore strategies to build a home in one night to avoid a potential destruction the following day as the construction would have not been completed. I find this example fascinating as it interprets the practice of the law in a different way that we traditionally do it. It is a form of negotiation with the inertia of the system rather than a strict reading of the law that would indubitably establish each behavior in the two categories of legal and illegal.
There is also a dimension of illegality that I would like to address. When does an illegal behaviour can be legitimately called “civil disobedience” to use Thoreau’s well known idea? My theory about it would probably deserve more work on it, but I have
Separation Barrier – Israel/Palestine
the intuition that one has the right to disobey a law when, through this action, one is primarily questioning the legitimacy of the law itself. I will use a comparison I made in the past to illustrate what I mean. When someone assassinates someone else, the chances are that this first person is not contesting the fact that one is prevented by law to kill another person; however, when Rosa Parks decided to go seating in the white people section in the bus in 1955, sitting was not primarily what she wanted to do, she wanted to deeply contest the very essence of the segregationist legal system. Of course, there might be some more complex and less extreme examples but this distinction allows us to make a difference between a selfish disobedience to the law from a political one. I suppose that the slums we were talking about are a mix of these two dimensions as they claim a territory opportunistically, not to be relegated to the outskirts of the city, but also as a manifestation of their existence and their right to the city.
Do these peregrinations of my mind resonate in any way for you? I look forward to hearing from you as I am sure that you will know how to challenge and articulate my intuitions.
Yours,
Léopold
FOURTH LETTER
(Exeter, UK, May 14th 2013)
Lucy Finchett-Maddock
Dearest Leopold,
Well, thank you for your last correspondence, and as I read through our previous meanderings into law and architecture, I am transported back to the sultry heat of India, the free flow of writing in the summer months of a soporific, verdant Devon last year. Perhaps any hints to a summer heat do not ring quite true here in the UK, but you get the picture! Not only has it been a while since writing to you dear Leopold, but it has been a while since writing full stop. The almost robotic practises of teaching — reading, reformulating, copying, altering, presenting, speaking, reproducing, shaking — are almost the inside-out of writing, the catharsis of mind that allows for ponderings on an aesthetics of law. But I am sure my six months of vocal not written engagement will be contributing and inspiring my thoughts nevertheless.
I am back in India with your immanent domain, quite a metaphor for the emergent and by no means inert scientific allegories we are sharing in relation to property, both that requisitioned by the state and that performed by the slums. The immanence of the Indian geography speaks to this kinetic energy, a city in flux through its response to legal and illegal planning regimes. It is interesting that you refer to the dichotomy of legal and illegal, as what has always been of interest to myself has in fact been this space in between, the point and threshold at which a constituent creates the constitution, the resistance becomes law. This is the immanency of law and resistance, the energy and metabolism whereby from one heartbeat to the next there is something that resembles a juridical formulation. Locating this moment is akin to imposing a rigid grammar of prescription to a work of art; to the ephemeral the resides as a sapphire in coal dust, because it does just that. But this liminal space in between the non-institutional and institutional still fascinates and allows for what is legal and what is illegal, within and external to law, like a Kafka-esque gate keeper, patrolling the door to the stomach of the law. By trying to understand these movements, the idea is to understand any foundation of law.
I also want to draw on your mentioning of disobedience, as this is something that I have been working (sadly more confined to within the academy than so much outside these days!) of late in relation to the concept and practice of ‘naughtiness’. Thoreau places the justification for disobeying law as that which rests as a duty, ‘If (an injustice) is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your body be a counter friction to stop the machine’; Arendt would say this is ‘testing the statute’ whereby to be civilly disobedient is to counter a law in order to change a law. The institutional character and limits of law comes up again in Arendt’s understanding of civil disobedience and its role in constitutionalism, whereby to be civilly disobedient is to effect and affect law through extra-legal action, ‘… the law can indeed stabilise and legalise change once it has occurred, but the change itself is always the result of extra-legal action’. Thus, this division between the exterior and interior of law assumes the foundation of law, as therefore being innovated from an outside source. The legal, illegal, alegal, extra-legal, or infra-legal even, are all a motion of legitimation and structuration and where can it be better expressed than in architecture itself, in a seething urbanity, in a reconfiguration of law whereby slums rest on the grid of colonial property rights in a stasis of illegitimacy. And yet without them, property itself would not exist, nor indeed the pre-eminence of the Common law. Slums are the extra-legal to the right to exclude.
As you know I have focused my research for the last few years on squatting, a way of performing architecture in both an appearance and legal loophole of transiency, and yet the performance can last in a temporality much longer than that anticipated by either the squatter or the state. This inertia in which you wonderfully place our discussion of bureaucracy and the techné of law, is as you say, both a source of frustration and also a procrastination that results in the expedient re-appropriation of land. Returning to physics here allows for the role of time to be understood, or space-time more precisely, as a motor for resistance, as a means of testing the statute, whether the disrupt it and change its course or otherwise. Entropy is the arrow of time, and so in this inertia is an aesthetics of dilapidation and decomposition, an inevitability that the half-built speedway or giant-like pillar of a flyover will eventually shift from being built — to becoming ruins. That plateau of architecture and law ‚ between construction and destruction — where entropy curlicues.
Once again dear Leopold, I shall leave it at that for you to ponder upon and will return to my teaching duties.
This post was originally published in The Conversation, which is funded by the following universities: Aberdeen, Birmingham, Bradford, Bristol, Cardiff, City, Durham, Glasgow Caledonian, Goldsmiths, Lancaster, Leeds, Liverpool, Nottingham, The Open University, Queen’s University Belfast, Salford, Sheffield, Surrey, UCL and Warwick. It also receives funding from: Hefce, Hefcw, SAGE, SFC, RCUK, The Nuffield Foundation, The Wellcome Trust and The Alliance for Useful Evidence
We are entering a time of great uncertainty for internet freedom following two recent events. Both occurred in the US but have repercussions for Europe, where the debate on the future of net neutrality is warming up. But while events across the Atlantic could be seen as a win for private interests, Europe might be a tougher nut to crack.
The District of Columbia Court of Appeals has overturned much of the Federal Communications Commission network neutrality regulations. In what has been seen as a major blow for net neutrality, it decided that internet access provider Verizon could charge customers for faster internet speeds. Then, the President of the United States decided to tighten the rules governing secret surveillance of electronic communications in the wake of the NSA scandal.
The latter decision is highly contentious, with many advocates for privacy claiming it does very little to restrict government surveillance of US citizens and nothing for foreigners – such as Europeans. That sets a precedent for the British government to make even more minor procedural changes, and for the respective agencies in US and UK to continue to swap the metadata that each has gathered on each other’s citizens. This amounts to government control of the internet, secured by gathering records of our metadata from private companies.
The net neutrality ruling in the US sets a precedent for private censorship by the same internet access providers, which are authorised, or at least not opposed in their actions, by the same governments. European lawmakers should take note of some of the prickly issues that have arisen in the course of these events.
Less than virtuous circle
The net neutrality ruling shows that it is extremely difficult to separate out individual items in communications policy. The National Security Agency and other security services need the legal and extra-legal cooperation of internet access providers to continue monitoring citizens and the internet access providers need regulatory backing when they seek to speed up or slow down traffic on the internet for their own commercial benefit.
In both cases, the user’s right to privacy when they browse the internet is trampled underfoot. A particularly egregious case shows that Europe is not immune to such controversies. In 2007, BT and behavioural advertising company PHORM intercepted the traffic of 30,000 users without any attempt to secure their consent. The government had been involved in the deployment of the technology used but crucially, it was later dragged to the steps of the European Court of Justice and privacy laws were later amended to stop such an event happening again.
Europe should also note that technological progress is very difficult to regulate in the public interest when private market forces are pushing hard to censor content in the interests of making a profit. In the UK, BT and Vodafone want to charge content companies to carry video, claiming they will be able roll out fixed and mobile high speed internet more quickly if they are granted the ability to put a toll lane on the internet.
Broken promises
Recent events also show that electoral promises are hard to keep in the US when Congress does not support legislation. Just as Obama failed to close the Guantanamo Bay detention camp as he had explicitly promised to do in his first presidential campaign, so the failure on net neutrality breaks his main technology policy promise from 2007.
This was a policy first developed by his friend Lawrence Lessig, his junior professorial colleague at Chicago when they both taught constitutional law in the early 1990s, and Lessig’s brilliant protege Tim Wu, who first coined the term net neutrality.
Tim Wu (left) and Lawrence Lessig
Lessig warned in 2010 that Obama was cooling on net neutrality because of political opposition from telecoms lobbyists and their sponsored congressmen.
The messages come from European policymakers are equally mixed. Ed Vaizey, the UK minister in charge of internet policy, has declared himself in favour of net neutrality but also in favour of higher speed toll lanes, which is contradictory. Similarly, European Commissioner Neelie Kroes began her term by declaring her love for net neutrality and has subsequently failed to do much to enforce it.
But Europe is not the United States and the litigation and congressional deadlock that has characterised the net neutrality debate does not apply. A pan-European proposal for enforcing net neutrality was set in motion by national legislation in the Netherlands and Slovenia and may become law this year, though a new Commission and Parliament may delay or even derail the process.
The United States has failed to enforce net neutrality properly because it has tried to deregulate carriers with an à la carte approach. It has kept one eye on neutrality while simultaneously removing the requirement for internet provider monopolies to open access to competitors. In Europe, monopolies still have strict regulation to allow competitors and there is no obvious reason why net neutrality would be successfully challenged by the courts as exceeding European legal powers.
Just as extra-legal internet snooping is disapproved of in mainland Europe, so private censorship by the same internet companies is unpopular, and telecoms lobbying may not prevent the imposition of a real net neutrality law. That would then lead to 28 countries trying to implement it. Ed Vaizey may soon have the chance to correct his contradiction.
The recent Law Commission Consultation Paper Hate Crime: The Case for Extending the Existing Offencesis the first large scale review of hate crime law in England and Wales. The Commission is now currently scrutinizing the large number of responses it has received before it provides its final report later this year. In the main, the Commission must decide whether it will recommend to extend the aggravated offences prescribed under the Crime and Disorder Act 1998 (C&DA) to include ‘hostility’ based on ‘sexual orientation’, ‘transgender identity’ or ‘disability’, and whether new offences of stirring up of hatred based on disability and transgender identity should be incorporated into the Public Order Act 1986. Alternatively, the Commission may simply recommend the status quo by retaining (though slightly improving) the current sentencing provisions set out under sections 145 & 146 of the Criminal Justice Act 2003 (CJA) – these provisions allow judges to enhance an offender’s sentence where he or she is motivated by, or demonstrates, hostility based on the victim’s race, religion, sexual orientation, transgender identity or disability.
In deciding whether to extend the law and/or improve the current sentencing provisions, the Commission must first consider the core principles underlying the Government’s approach to hate crime – as set out in their 2012 Action Plan. Within this Action Plan it states that the Government’s number one aim is to prevent hate crime by challenging the attitudes which underpin it, in addition they want to increase reporting and improve operational responses to hate incidents. Considering these primary aims, it would seem prudent of the Commission to start by asking the following question:
Can ss. 145 & 146 of the Criminal Justice Act 2003 prevent hate crime by challenging prejudice?
In other words, should the Government maintain the status quo, can the current sentencing provisions achieve its primary goal of preventing hate crime? On the face of it this seems highly unlikely. Sentencing provisions (even if somehow improved) do little more than enhance the penalty of an offender. Criminological research has consistently shown that increasing the sentence for a particular type of offence has little impact on the overall number of offences that are committed. Part of the reason for this is that very few sentencing remarks will ever reach the public domain (outside of those who attend court) and thus it is doubtful whether any general deterrence of hate crime can be achieved.
Instead, the most likely effect of ss. 145 & 146 is to send more offenders to prison for longer periods of time. We should remain sceptical about whether this approach will either prevent hate crime or challenge the prejudices which underlie it. Indeed such an approach may actually be counter-productive. For instance not only are offenders who
More than 40000 hate crimes are reported every year
go to prison more likely to reoffend when they come out, but we should be highly sceptical about whether locking someone up in a hyper masculine and hostile environment will ever make them less hateful.
Yet while I remain far from convinced that focusing on sentencing provisions is the best way of addressing hate crime, I do remain hopeful that hate crime can be partly prevented and effectively challenged through the use of the criminal law. Unlike sentencing provisions, specific offences are much more likely to penetrate the public consciousness. For example, offences such as ABH and GBH have captured the public imagination and most know the seriousness of these offences. Similarly, hate crimes that make it onto the criminal statute books will be much more likely to enter public thinking, gain media attention and become part of the public vernacular. This means that the state is able to convey the immorality of hate in a much more powerful way. In fact, one problem with relying on the sentencing provisions set out in the CJA is that they are only ever applied where the police and the CPS ask the court to take them into account – frequently this does not happen (see for example the recent case of Sheard [2013]). This is because the hate element of an offence becomes secondary to the pursuance of the crime based on the fact that it will not make up part of the actual offence, as prescribed by law.
Some of you may be reading this still thinking, “But surely the C&DA has the same effect that the CJA has – i.e. when all’s said and done it enhances penalties!”, you are of course right, but for me the real potency of the C&DA lies in its denunciatory effects and not its often punitive outcomes. Moreover, accepting the utility of hate crime legislation does not mean that one must simply accept a retributive response to this type of crime. Instead, we need to think more creatively about how to sentence hate crime offenders. While enhancing an offender’s penalty may recognise the increased harm that hate crimes cause to victims, communities and society more broadly, it is likely to do little else than appease the victim’s short-lived desire for vengeance. Hence the law of hate should be concerned more with sentences that “prevent hate and challenge prejudice” while additionally attending to the needs of victims. Rather than sending more offenders to prison then, sentences should be “enhanced” by utilising more community-based rehabilitation programmes and restorative justice measures. These are measures which attend to the underlying causes of hate crime while simultaneously encouraging offenders to repair the harms they have inflicted. Together, the symbolic aspect of the criminal law when combined with community-based sentences, could help to convey important social disapproval for hate-motivated offences to the community which in turn would help to prevent it.
It is not just the social declaration against hate which the C&DA provides. There is a second, perhaps just as important, message contained within specific hate crime offences. This message is that certain groups in society will be protected from targeted victimisation. It is, in effect, recognition of the history of prejudice-based victimisation that certain groups have had to endure and that the state is willing to do something about it. This aspect of hate crime legislation is essential to groups who feel vulnerable to abuse and who demand greater protection from it by the state – especially considering that it has been the state itself that has often been the cause of minority group oppression.
Go Home van
This is not to suggest that the Crime and Disorder Act will solve the problem of hate crime in its entirety – in fact it should be noted that there is the concern that the state (and the Law Commission as part of its machinery) may hide behind hate crime laws while doing little else to actively tackle hate crime. Worse still, these laws may actively mask the imposition of policies – such as the recent “Go Home” posters used by the Home Office to combat illegal immigration –which actually fan the flames of hatred against certain minority groups.
Government intentions aside, hate crime laws can and do make a genuine difference by ensuring that the police and other criminal justice agencies sit up and pay attention to a problem which has blighted societies throughout the world for centuries. We might ask ourselves: Would the police put the time and resources into tackling the problem without a specific offence compelling them to? Could we locate as many hate-motivated offences that we currently do, if the law and its enforcers did not bother taking account of it? Of course it is possible, and currently is possible, but it is much more difficult. It is for all these reasons that I recommend that the Government extend the Crime and Disorder Act 1998 to include sexual orientation, transgender identity and disability hostilities, ending the current hierarchy of hate-motivations in England and Wales and sending a clear message to society that all hate-motivated offences will be pursued equally and vigorously by the state.
During a recent trip to Ghana, I visited the Faculty of Law at the Kwame Nkrumah University of Science and Technology (KNUST). I was also able to speak with Eric Delanyo Alifo, a criminal lawyer based in Accra. These conversations were a stark reminder of the struggles faced by those accused of criminal wrongdoing in Ghana, and the struggles faced by those who endeavour to assist them. Mr Delanyo Alifo set up and runs an NGO called HelpLaw Ghana. The purpose of the NGO is to provide free legal assistance to those who cannot afford it. Unfortunately, it has been, and continues to be, an uphill battle, in terms of both the workload and available resources.
Ghana does have a state-run system of legal aid. However, it is largely ineffective and is fraught with difficulties. The nature of these difficulties has been carefully explained in an article by Renee Morhe, a lecturer at KNUST. They include a shortage of experienced lawyers, low levels of remuneration for lawyers, and poor access to legal aid offices. As a result, many of those who are accused of criminal wrongdoing go unrepresented, causing them serious problems at each stage of the criminal process.
For example, once accused persons have been arrested, anecdotal evidence suggests that it is not uncommon for the police to beat ‘the truth’ out of them. This claim is supported by a recent report which found that as many as 40% of pre-trial detainees said they had been tortured by a state official since their arrest. Without the assistance of a lawyer, it is very difficult for accused persons to challenge the validity of confessions obtained in this way. This problem is compounded by the high rates of illiteracy amongst accused persons, making it easy for the suspect to be tricked into signing a false confession, and making it nearly impossible for the accused to adequately prepare for trial or challenge the evidence against him in court.
Ghanaian pre-trial procedure is not subject to the kind of regulation that English procedure is. For example, police interviews are not routinely recorded. Even if the accused is fortunate enough to have a lawyer, the police might prevent the lawyer from being present during interrogations, and the lawyer’s own meetings with the accused might be observed or monitored by the police, depriving them of any confidentiality. These practices are not compatible with Ghanaian law, including Article 19 of the Constitution, which provides, inter alia, that a person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence.
Ghana Supreme Court
One consequence of the lack of legal representation is that pre-trial detention periods can be incredibly long. This is, in part, due to the fact that the accused is not competent to apply for, or obtain, bail. A recent report on the socioeconomic impact of pre-trial detention in Ghana, published by Open Society Foundations, found an average pre-trial detention period of 14 months, with the longest coming in at 7 years. Many of the detainees were held in relation to non-violent crimes and were unlikely to abscond or pose any risk to society. The same report found that only 27% of detainees had seen a legal representative (none of whom said that the state had paid for the cost of their legal representation). The result is many innocent people wasting significant periods of their lives in prisons which are severely overcrowded and unhygienic (for more information on current prison conditions in Ghana, see this Amnesty International report).
What I have outlined above is just the tip of the iceberg in terms of the unsatisfactory nature of criminal procedure in Ghana, and the lack of respect accorded to fundamental due process rights. More detailed accounts, based on the experiences of Eric Delanyo Alifo, can be found here. I have the utmost respect for Mr Delanyo Alifo and other dedicated lawyers who are making significant personal sacrifices in their efforts to create change. As a country, Ghana has a lot to offer; it is often employed as a shining example of democracy and economic development in Africa. Yet, the approach to criminal procedure and due process has remained largely stagnant.
Thinking closer to home, one becomes aware of just how important it is to resist government plans to cut legal aid fees by up to 30%. Without adequate funding, many lawyers will be forced to abandon the criminal bar; the quality of state-funded legal representation will diminish; the rights of accused persons will be put in jeopardy; and the potential for both wrongful convictions and wrongful acquittals will increase.
