Guest Post: Your Immigration Status, Please!

Guest post by Matthew White

On 21 September 2017, the Guardian published an article warning that from January 2018, UK banks and building societies are to carry out immigration checks on 70 million current accounts. 70 million?

The article continues that this measure is expected to identify 6000 visa overstayers, failed asylum seekers and foreign national offenders facing deportation. Accounts that are identified will be closed down or frozen, to make it difficult to maintain a settled life in the UK. This is said to act as a powerful incentive for an agreement on voluntary departure so money can be secured once they’ve left the country. Hang on, if accounts can be closed or frozen, how are home returners supposed to pay for leaving the UK if they can only access their money after they have left?

Of course, the Home Office may contribute up to £2000 for an assisted return (in 6% of cases) but this does not apply to immigration offenders, European Economic Area (EEA) citizens etc (I’m watching you post-Brexit Britain). Speaking to the Guardian, Satbir Singh, the chief executive of the Joint Council for the Welfare of Immigrants, pointed out that

“The government’s own record shows it cannot be trusted even to implement this system properly. Immigration status is very complex, and the Home Office consistently gives out incorrect information and guidance…Migrants and ethnic minorities with every right to be here will be affected by the imposition of these new checks.”

This is hard to disagree with given that the Home Office ‘accidently’ sent out 100 letters to European Union (EU) citizens warning them to leave or face removal, defied UK courts, has a high error rate which all contributes to the hostile environment the Guardian refers to.

What is the Hostile Environment?

This began with the then Home Secretary (now Prime Minister) Theresa May in an interview with the Telegraph where said:

“The aim is to create here in Britain a really hostile environment for illegal migration… What we don’t want is a situation where people think that they can come here and overstay because they’re able to access everything they need.”

Colin Yeo describes it as a:

“[P]ackage of measures designed to make life so difficult for individuals without permission to remain that they will not seek to enter the UK to begin with or if already present will leave voluntarily.”

This includes ‘measures to limit access to work, housing, health care, bank accounts and to reduce and restrict rights of appeal against Home Office decisions’ (ibid). The defining feature is the reliance on indirect means to encourage compliance with and punish breaches of immigration control (ibid) effectively turning the UK into a nation of border cops.

So, what is the legal basis for latest in the Hostile Environment Saga?

As Yeo highlights, the legal basis for this new measure appears to come from Schedule 7 of the Immigration Act 2014 (IA 2014) which inserts s.40A into the IA 2014. Section 40(A)(1) requires banks and building societies to carry out immigration checks (specified by regulations) into each current account which is not an excluded account. Excluded accounts consists of accounts used for purposes of trade, business or profession, which can be found in Regulation 2 of the IA 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2017. Section 40B concerns the bank or building societies duty to notify the existence of current accounts for disqualified persons. A disqualified person is spelt out in s.40(A)(3) of the IA 2014, is a person who is in the UK, does not have leave to remain and for the Secretary of State to consider the account to be frozen (see s.40D and E of the IA 2014 respectively).

The Regulation responsible for the immigration checks made under s.40(A)(1) of the IA 2014 can be found in the Immigration Act 2014 (Current Accounts) (Compliance &c) Regulations 2016. Regulation 2 notes that immigration checks must be carried out during each successive quarter of each year. Four times a year, every year! So, these ridiculous powers appear to have a sound legal basis, I guess that is the end of that chapter, right? Yeah, I didn’t think so.

Give me a E, give me a C, give me a H, give me a R:

That pesky human rights document that the UK helped draft all them years ago just won’t stop being a pain in its ass. Yes, I am referring to the European Convention on Human Rights (ECHR). Why is this relevant? Because as Yeo correctly notes the hostile environment measures have great potential of intruding into people’s private lives. And what does Article 8 of the ECHR protect? Private life. For those who are unfamiliar with probably the most elusive (Luke Clements, Nuala Mole, and Alan Simmons, EUROPEAN HUMAN RIGHTS: TAKING A CASE UNDER THE CONVENTION p. 176 (2d ed. 1999)) Convention Right, it states that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In a nutshell, this Article says that the State should leave us the hell alone in the enjoyment of these rights (negative obligations). This is not absolute, and there are certain circumstances in which the State can intervene (as detailed in Article 8(2)), there may even be instances where the State has failed to intervene and thus failed to protect Article 8 rights based on positive obligations (X and Y v Netherlands, (para 23)).

For this blog, only the aspect of private life will be considered. For Article 8 to be applicable, it first has to be engaged/triggered/interfered with, and because private life is not susceptible to exhaustive definition (Bărbulescu v Romania, (para 70)), this is easy-peasy to establish. Immigration checks requires the processing of personal data which is detailed in many data protection instruments, and as such involves an interference with private life (Amann v Switzerland, (paras 65-7)). The mere fact that personal data is even stored interferes with Article 8 whatever the subsequent use of said data (S and Marper, (para 67)). This is due to the protection of personal data being of fundamental importance to the enjoyment of private life (ibid, (para 103)).  There are various other ways in which Article 8 could be engaged, whether it is based on removal (which would also interfere with ‘family life’ (Al-Nashif v Bulgaria, (para 102-103)) and ‘home’ (Slivenko and others v Latvia, (para 96)), or disrupting professional activities (Niemietz v Germany, (para 29) etc. Once interference has been established, this must be ‘in accordance with the law’ and ‘necessary in a democratic society.’

In Accordance with the Law:

Here comes some legal Kung Fu. The first legal test of whether a measure complies with human rights is to determine whether the law is ‘in accordance with the law.’ Essentially whether the law itself is lawful. The European Court of Human Rights (ECtHR) have ruled extensively on the matter and has set out some clear requirements. The law has to have some basis in domestic law (M.M. v UK, (para 193)), and has to have quality e.g. be accessible and foreseeable (S and Marper, (para 95).

This first requirement of having some basis in domestic law is satisfied due to the power to compel banks and building societies comes from an Act of Parliament which enables Regulations to be created to that effect. The law will probably also satisfy accessibility because its published online (Leander v Sweden, paras 52-3). Now, foreseeability is a little trickier, a law is foreseeable if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate their conduct (Amann v Switzerland, (para 56). This ensures there are adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any such measures (Uzun v Germany, (para 61). After all:

[I]t would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference…(Szabo and Vissy v Hungary, (paras 230-1).

Forgive the dense legal jargon, but correct me if I’m wrong, the power to compel banks and building societies to conduct immigration checks applies to all current accounts, yeah? In addition to this, these checks occur four times a year every year. So, first of all, where is the adequate indication that the state will resort to these measures if they affect every current account? Yeah, there isn’t any because they affect every current account. What are the circumstances for when an immigration check may occur (like for example, when there is reason to suspect (Roman Zakharov, (para 260) this current account belongs to someone who has outstayed their visa)? That’s right, the law says nothing on this. So, if this affects 70 million accounts and the Home Office is looking to catch 6000 (where did this figure even come from btw?) people, then 69994000 (assuming there are no multiple current accounts by overstayers) current accounts have just been screened for no reason at all. This is a textbook example of arbitrary interference due to the unfettered power this law provides. So, in a nutshell, this law is not foreseeable because it does not indicate when and in what circumstances a current account may be screened, it affects all current accounts, arbitrarily interferes with Article 8 rights, and grants unfettered powers. Therefore, (you guessed it) the power to compel immigration checks on current accounts is not in accordance with the law, and thus violates Article 8. Did I miss anything? Oh yes, the next human rights test.

Necessary in a Democratic Society:

Finding that s.40(A)(1) of the IA 2014 is not in accordance with the law usually means it is no longer necessary to consider whether such measures are ‘necessary in a democratic society’ (M.M., (para 207); Amann, (para 63)). I could have finished this blog post in the previous paragraph, but where is the fun in that (Kurić and others v Slovenia, (para 350))?

For a measure to be ‘necessary in a democratic society’ interfering with said rights must correspond to ‘pressing social need,’ whether it was ‘proportionate to the legitimate aim pursued,’ and ‘whether the reasons given by the national authorities to justify it are relevant and sufficient’ (S and Marper, (para 101)).

Pressing social need:

Are these blanket checks necessary? After all, ‘necessary’ is not synonymous with ‘indispensable’ but that doesn’t mean it’s as flexible as ‘desirable,’ ‘reasonable’ or ‘useful’ either (Handyside v United Kingdom, (para 48)). Therefore, relying on its utility (proven or unproven) is not enough and the state requires a greater justification (Pullen & Ors -v- Dublin City Council, (para 12(c)). The Joint Committee on Human Rights (JCHR) have pointed out that ‘[t]here must be a sufficient factual basis for believing that there was a real danger to the interest which the State claims there was a pressing social need to protect’ (Joint Committee on Human Rights, First Report (HL 42/HC 296, 23 April 2001), Annex 2).

So, are these measures necessary? Let’s consider the justifications for them from the impact assessment. The Government argue that they want to catch irregular migrants who created current accounts before it was lawful to run immigration checks when they were first set up or those who created current accounts lawfully but subsequently became irregular (so you know, all migrants are kinda suspects now). The next sentence is very suspect, the Government said they want banks and building societies to check the accounts of known irregular migrants which is a tad different from requiring them to check every current account, four times a year, just in case. The impact assessment later acknowledges the process of immigration checks is to check every current account for matches (ibid, para 20), so essentially a panoptic sort (Oscar H. Gandy Jr, The Panoptic Sort: A Political Economy Of Personal Information (Critical Studies in Communication and in the Cultural Industries) 1993 Westview Press). The impact assessment does not consider the impact on human rights, particularly Article 8 for example (SO HOW DO THEY KNOW IT IS COMPLIANT? OH WAIT…), the fact that bank details are processed for another purpose unconnected to its original purpose of processing (purpose limitation). The impact assessment does not entertain the possibility of only checking current accounts where there are reasonable and objective grounds to believe it belongs to an irregular migrant. Furthermore, the impact assessment acknowledges that after the first year, only about 900 matches will be made (ibid, para 20) even though 70 million current accounts will be checked four times a year. In essence the immigration checks are done ‘haphazardly, irregularly or without due and proper consideration’ (Roman Zakharov, (para 257)). There might be a pressing social need to remove over stayers by checking current accounts that are linked to them, but there can be no pressing social need that subjects every current account to the whims of a Government hell bent cementing its hostile environment. And on a deeper level, what has the right to live in the UK have to do with having a current account? This link is never established and so weakens the justifications for this measure further. Not establishing a pressing social need for such wide-reaching powers would too violate the ECHR (Faber v Hungary, (para 59)).

Relevant and sufficient:

This mainly concerns the effectiveness of the measure which relies upon factual, statistical, or empirical information as to the effectiveness of a certain measure (Janneke Gerards, ‘How to improve the necessity test of the European Court of Human Rights’ (2013) I•CON 11:2 466, p473). The effectiveness of the impact assessment is based purely on guesstimation as the impact assessment admits (impact assessment, para 24). The Home Office and HM Treasury would conduct an informal review 12 months after implementation to ensure effectiveness (impact assessment, para 24). Not only is there no evidence to back up any assertions i.e. pilot studies etc, the Governmental department for controlling immigration will assess its own effectiveness (that’s some independence right there), which is not even guaranteed because this is not mandated by the IA 2014, but there is no explanation of what ‘informal review’ means. Sounds a bit cloak and dagger substituting intrigue with concern. A measure is not sufficient just because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms (Sunday Times v UK, (para 65)). Not only is there no evidence to justify this measure, the screening subjects all current accounts to a rule formulated in general terms i.e. by virtue of having a current account, your immigration status will be checked. Even if the justifications were relevant, this does not mean they are sufficient, and a lack sufficient reasons too would violate the ECHR (ibid, (paras 63 and 67)).

Proportionality:

This test comes in many flavours (Thomas Hickman, ‘Proportionality: Comparative Law Lessons’ (2007) 12 Jud. Rev. 31.) but two aspects from the ECHR perspective will be considered for this blog post. The two aspects are whether the measure was the least restrictive to obtain the objective, and whether a fair balance has been struck.

The least restrictive measure (LRM) is exactly what it is, don’t use a sledgehammer to crack a nut, we have nutcrackers for that (Eva Brems and Laurens Lavrysen ‘‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights’ (2015) HRLR 15 139-168, p140). By virtue of checking all current accounts (which leads to net loss, p11) instead of checking accounts where there is reason to believe it is linked with an irregular migrant, a sledgehammer has indeed been used.

With regards to striking the fair balance, the ECtHR has never been a fan of indiscriminate powers (S and Marper, (para 125); Kennedy v UK, (para 160)) because it fails to strike a fair balance. So, checking all current accounts is an indiscriminate power, and too would violate the ECHR (S and Marper, (para 126)). The disproportionality intensifies because the interference caused by immigration checks are indefinite in that it occurs four times a year every year until, well, the Government feels like it and the fact that the number likely to be caught are miniscule in comparison to the amount of current accounts checked.

Oh, but we’re checking immigration status regardless of nationality:

This is what a Barclays spokesperson said to the Guardian regarding the new law. I am not suggesting nationality should be the basis for the exercise of power, but as I’ve pointed out above, indiscriminate powers such as these are not compatible with the ECHR. There is another reason why this is not compatible with the ECHR, and that is because of Article 14, which is the anti-discrimination right. Its only applicable when a Convention Right is engaged, in this case, Article 8, and this is where Barclays’s stance (through no fault of their own of course as they are complying with the law) becomes problematic. Indiscriminate powers triggers what is known as Thlimmenos discrimination in that:

[T]he right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (Thlimmenos v Greece, (para 44)).

And so, the position is this, ‘If there is no reason to suspect I am an irregular migrant, why are you running an immigration check on me?’ ‘Where is your objective reasonable justification for singling me out?’ ‘You want to catch 6000 people in your first year, and 900 every year there in after, if I’m not on your list why again are you running an immigration check and furthermore, once I’ve been ruled out, why are you still checking my immigration status four times a year every year?’ ‘You know why you can’t answer these questions? Because you don’t have an answer.’ ‘Do you know what this means? You’ve violated Article 8 in conjunction with Article 14’ (ibid, (para 55)).

Conclusions:

Natalie Bloomer and Samir Jeraj point out that Prime Minister May’s obsession with immigration has turned Britain into a surveillance state. Sadly, we have been a surveillance state for some time before the hostile environment even took form. We are going through a phase where hard won fundamental rights are slowly being nibbled away, each and every measure may seem mundane at the time it was enacted, but this has only emboldened the state to ever-more take the next logical step in cementing hold as a surveillance state whether it be through the hostile environment or electronic mass surveillance. Liberty dies by inches (Verena Zöller, ‘Liberty Dies by Inches: German Counter-Terrorism Measures and Human Rights’ (2004) German Law Journal 5:5 469) and becomes under severe threats from populist movements. This post didn’t really consider the data protection implications of this measure, but the Information Commissioner has linked Article 8 to unlawful processing, so there’s that. What this post has sought to do, is highlight at every legal hurdle, the powers that mandate immigration checks on current accounts, fails.

 

The Twelve Days of Brexit

On the first day of Brexit

My true love sent to me

A Nigel, telling porkies.

On the second day of Brexit

My true love sent to me

Big lies on buses

And a Nigel, telling porkies

On the third day of Brexit

My true love sent to me

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the fourth day of Brexit

My true love sent to me

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the fifth day of Brexit

My true love sent to me

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the sixth day of Brexit

My true love sent to me

Giles Fraser’s vestments

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the seventh day of Brexit

My true love sent to me

No impact assessments

Giles Fraser’s vestments

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the eighth day of Brexit

My true love sent to me

Eight prices rising

No impact assessments

Giles Fraser’s vestments

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the ninth day of Brexit

My true love sent to me

Nine factories closing

Eight prices rising

No impact assessments

Giles Fraser’s vestments

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the tenth day of Brexit

My true love sent to me

Ten lords-a-lying

Nine factories closing

Eight prices rising

No impact assessments

Giles Fraser’s vestments

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the eleventh day of Brexit

My true love sent to me

Eleven racist hate crimes

Ten lords-a-lying

Nine factories closing

Eight prices rising

No impact assessments

Giles Fraser’s vestments

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

On the Twelfth day of Brexit

My true love sent to me

Twelve sad deportings

Eleven racist hate crimes

Ten lords-a-lying

Nine factories closing

Eight prices rising

No impact assessments

Giles Fraser’s vestments

Fake Sov-reign-ty

Many job losses

Sly grins from bosses

Big lies on buses

And a Nigel, telling porkies.

John Lewis, Brexit… and Goldilocks!

The ‘row’ (such as it is) about John Lewis’ decision to remove the ‘girls’ and ‘boys’ labels from clothes has been in some ways quite revealing. There’s a lot of anger, a lot of downright rage being shown – at levels that have certainly surprised me. The strange thing is that it has come from many of those people who are equally vehemently fighting to ‘ban the burkha’.

On the one hand, they hate the idea of removing the distinction between genders, on the other hand they hate the idea of excessive distinctions between genders. It’s a bit of Goldilocks thinking: the burkha porridge is too cold, the ‘ungendered’ clothing too hot. Only having the precise level of control that they approve of is just right. Girls need to be put in their place, but not too much in their place.

It has echoes of the way that many Brexiters are also vehemently against Scottish independence. The EU is too big. Scotland is too small. Only the United Kingdom is just right. And again, it seems to be a lot of the same people who make this argument. They want to control everything, because only they know what is right. Everyone else is either too big or too small, too weak or too strong, too liberal or too ‘fundamentalist’.

For me, it’s strange to be so certain – and even stranger to want to impose that certainty on everyone else. Mind you, I always thought Goldilocks was the real villain in the story. I was rooting for the bears.

A disturbing plan for control…

The Conservative Manifesto, unlike the Labour Manifesto, has some quite detailed proposals for digital policy – and in particular for the internet. Sadly, however, though there are a few bright spots, the major proposals are deeply disturbing and will send shivers down the spine of anyone interested in internet freedom.

Their idea of a ‘digital charter’ is safe, bland, motherhood and apple-pie stuff about safely and security online, with all the appropriate buzzwords of prosperity and growth. It seems a surprise, indeed, that they haven’t talked about having a ‘strong and stable internet’. They want Britain to be the best place to start and run a digital business, and to make Britain the safest place in the world to be online. Don’t we all?

When the detail comes in, some of it sounds very familiar to people who know what the law already says – and in particular what EU law already says – the eIDAS, the E-Commerce Directive, the Directive on Consumer Rights already say much of what the Tory Manifesto says. Then, moving onto data protection, it gets even more familiar:

“We will give people new rights to ensure they are in control of their own data, including the ability to require major social media platforms to delete information held about them at the age of 18, the ability to access and export personal data, and an expectation that personal data held should be stored in a secure way.”

This is all from the General Data Protection Regulation (GDPR), passed in 2016, and due to come into force in 2018. Effectively, the Tories are trying to take credit for a piece of EU law – or they’re committing (as they’ve almost done before) to keeping compliant with that law after we’ve left the EU. That will be problematic, given that our surveillance law may make compliance impossible, but that’s for another time…

“…we will institute an expert Data Use and Ethics Commission to advise regulators and parliament on the nature of data use and how best to prevent its abuse.”

This is quite interesting – though notable that the word ‘privacy’ is conspicuous by its absence. It is, perhaps, the only genuinely positive thing in the Tory manifesto as it relates to the internet.

“We will make sure that our public services, businesses, charities and individual users are protected from cyber risks.”

Of course you will. The Investigatory Powers Act, however, does the opposite, as does the continued rhetoric against encryption. The NHS cyber attack, it must be remembered, was performed using a tool developed by GCHQ’s partners in the NSA. If the Tories really want to protect public services, businesses, charities and individuals, they need to change tack on this completely, and start promoting and supporting good practice and good, secure technology. Instead, they again double-down in the fight against encryption (and thus against security):

“….we do not believe that there should be a safe space for terrorists to communicate online and will work to prevent them from having this capability.”

…but as anyone with any understanding of technology knows, if you stop terrorists communicating safely, you stop all of us from communicating safely.

Next:

“…we also need to take steps to protect the reliability and objectivity of information that is essential to our democracy and a free and independent press.”

This presumably means some kind of measures against ‘fake news’. Most proposed measures elsewhere in the world are likely to amount to censorship – and given what else is in the manifesto (see below) I think that is the only reasonable conclusion here.

“We will ensure content creators are appropriately rewarded for the content they make available online.”

This looks as though it almost certainly means harsher and more intense copyright enforcement. That, again, is only to be expected.

Then, on internet safety, they say:

“…we must take steps to protect the vulnerable… …online rules should reflect those that govern our lives offline…”

Yes, We already do.

“We will put a responsibility on industry not to direct users – even unintentionally – to hate speech, pornography, or other sources of harm”

Note that this says ‘pornography’, not ‘illegal pornography’, and the ‘unintentionally’ part begins the more disturbing part of the manifesto. Intermediaries seem likely to be stripped of much of their ‘mere conduit’ protection – and be required to monitor much more closely what happens through their systems. This, in general, has two effects: to encourage surveillance, and to encourage caution about content (effectively to chill speech). This needs to be watched very carefully indeed.

“…we will establish a regulatory framework in law to underpin our digital charter and to ensure that digital companies, social media platforms and content providers abide by these principles. We will introduce a sanctions regime to ensure compliance, giving regulators the ability to fine or prosecute those companies that fail in their legal duties, and to order the removal of content where it clearly breaches UK law.”

This is the most worrying part of the whole piece. Essentially it looks like a clampdown on the social media – and, to all intents and purposes, the establishment of a full-scale internet censorship system (see the ‘fake news’ point above). Where the Tories are refusing to implement statutory regulation for the press (the abandonment of part 2 of Leveson is mentioned specifically in the manifesto, along with the repeal of Section 40 of the Crime and Courts Act 2013, which was one of the few bits of Leveson part 1 that was implemented) they look very much as though they want to impose it upon the online media. The Daily Mail will have more freedom than blogging platforms, Facebook and Twitter – and you can draw your own conclusions from that.

When this is all combined with the Investigatory Powers Act, it looks very much like a solid clampdown on internet freedom. Surveillance has been enabled – this will strengthen the second part of the authoritarian pincer movement, the censorship side. Privacy has been wounded, now it’s the turn of freedom of expression to be attacked. I can see how this will be attractive to some – and will go down very well indeed with both the proprietors and the readers of the Daily Mail – but anyone interested in internet freedom should be very much disturbed.

 

Blinded… a short poem for World Poetry Day

We let ourselves be blinded

By ignorance and hate

That keeps us narrow-minded

And leaves others to their fate

We let the hatred-mongers

Weave fairy tales of fear

“There are those amongst us

Who just don’t belong here”

They mix half-truth with anger

And take real people’s pain

And twist it with their stories

For their own hateful gain

And by the time we see it

It’s sadly far too late

They’ve taken back control

And we’re left to our fate.

 

 

Closed borders and closing minds?

I returned from a brief trip to Romania with distinctly mixed emotions. There was the pleasure of a great trip, seeing old friends, being treated with immense hospitality – and at the same time, as this was my first trip to Romania since the Brexit vote, a sense of profound sadness and what we, as a nation, have decided, and perhaps even more importantly why. I know the reasons for the referendum result are complex, and I know that my views will not be popular with some, but as I see it a very significant part of what lies behind the result is old-fashioned xenophobia. I mean that precisely: a fear or distrust of strangers or foreigners.

Romania is special…

I have a long connection with Romania. My wife is Romanian, and I’ve been visiting regularly for well over a decade. There are all kinds of things I love about the country. The food is generous and fascinating – things like the way they serve pickled chillies and their own special sour cream with their soups to the great cheeses and cakes. Their folk tales, with scary dragon-like ‘zmeu’ and their scarier mothers, and even worse, the wonderfully named witch-like ‘zgripțuroaică’, are excellent. They have great cats too. This is Miți (‘Mitzi’).

As for Romanian people, they’re great too – or rather, they’re just people. That’s really the point. There’s nothing to be especially scared of about Romanians – and they certainly don’t deserve the demonisation that they’ve been subjected to over the last few years, particularly by Nigel Farage, who amongst other things suggested that people should be scared if Romanians moved into their street, and memorably told James O’Brien that ‘you know the difference’ between Romanians and Farage’s own German wife and children.  The suggestion that Romanians are essentially cheats and criminals, people to fear, people to worry about, people that we shouldn’t let into our country, is no more credible than the idea that Romanians are all vampires – and yes, I spent half my time on this trip in Transylvania.

Romania isn’t special..

I know Romania – which is why I know the good things about it. I’ve eaten the food, listened to the folk tales, stroked the cats, walked in the forests and mountains, and spent time with the people. This, however, is not a post about how wonderful Romania is. I’m sure the same is true of every country. When you spend time with people anywhere, when you open yourself to what they have to say, when you want to learn about them, you soon find that – if you don’t start from a position of distrust or fear.

That’s what saddens me so much about what seems to have happened in the UK. We seem to be going backwards, looking inwards, and doing so out of fear. Neville Chamberlain was referring to Czechoslovakia when he talked of ‘a quarrel in a far-away country between people of whom we know nothing’ – but that was back in 1938, and one of the great things that I thought had happened in the intervening years was that we had begun to learn a bit more about people from around the world – and from Eastern Europe in particular. Instead, it seems we don’t just know nothing about people from some of those countries – we know less than nothing, as what we ‘know’ is based on lies, exaggerations, small pieces of ‘information’ taken out of context and twisted into something that may be even worse than lies.

Closing borders and closing minds…

The thing is, by having more people from more places in the UK, we can start to learn more, to open more, and to benefit much more – it’s not a coincidence that there is more tolerance in places where there has been more immigration, and support for UKIP and Brexit is greatest in places with the least immigration. The converse, sadly, is also likely to be true. If we have less immigration, if indeed many of those who have come here decide to leave, then we all lose. We lose opportunities to learn, to broaden our horizons, to find something new.

‘But it’s not about xenophobia, we have legitimate concerns’ will be the response of many Brexiters, and in their own minds I’m sure that’s true – and there are huge concerns in the UK at the moment, from the huge levels of inequality and poverty, the creaking NHS, the strained and dysfunctional housing market, low wages and so forth. Blaming immigration – which easily mutates into blaming immigrants themselves – for these problems, however, is very revealing. The evidence, at least the academic evidence (I won’t use the unfashionable term ‘experts’) is generally against making such an association. Of course I am biased – but I am aware of my bias, at least of its existence. Academics refer to something called ‘confirmation bias’ – broadly speaking, that there is a tendency to seek out and to believe evidence that confirms your own theories, your beliefs (and indeed your prejudices), whilst downplaying or disparaging evidence that opposes it.

As someone in favour of immigration (for all the reasons mentioned above) I am naturally predisposed to evidence that makes immigration seem a positive. I do at least acknowledge that. Why, then, would somebody take the converse position: downplaying, denying or disparaging the evidence that suggests (for example) that ‘health tourism’ is minimal, that immigration does not impact upon employment rates, that has an infinitesimal effect on wages and so forth? That is where my biggest sadness comes. The main reason to choose to believe stories that blame immigration rather than those that point out the positives is that those stories confirm existing prejudices. Confirmation bias in practice… in this case confirming the xenophobia.

That’s where my sadness comes in. We’ll survive Brexit – if nothing else, spending time with Romanians provides a strong and healthy reminder that people can get through awful times, outlast awful governments, and find a way to make the best of it. Right now, Romanian people are protesting against a government that literally wants to stop corruption being a crime – but they’ve lived through dictatorship and come out the other side. We’ll do the same – ‘muddling through’ in British style perhaps. That we have to is sad – and that we’ve chosen to close our minds as well as our borders is even sadder.

Brexit and consequences…

Yesterday morning I tweeted about Brexit (as I’ve done a fair number of times), and it went just a little bit viral. Here’s the tweet:

It was an off-the-cuff Tweet, and I had no idea that people would RT it so much, nor that it would provoke quite as many reactions as it has. I’ve replied to a few, but, frankly, it’s not possible to reply to all. The responses, however, have been quite revealing in many ways. As usual, people read Tweets in different ways, and of course this particular Tweet is far from unambiguous. I was asked many times what is the ‘this’ that I’m saying is the fault of the ‘Brexit people’. And who I meant by ‘Brexit people’. I was told I was wrong to lump all Brexit people together. And that we should be looking for unity, not stoking the fires of division.

Some thought I was specifically talking about the dramatic fall of the pound. I wasn’t, but I might have been. Others thought I was blaming Brexit voters for ‘anything and everything’. I wasn’t. Actually, what I was doing was getting angry with those people who voted for Brexit but are now saying ‘we didn’t vote for this’ when they see Theresa May’s increasing nasty and xenophobic government do things like threaten to use EU citizens in the UK as ‘bargaining chips’, sending foreign doctors home as soon as we’ve trained enough ‘home grown’ doctors, and ‘naming and shaming’ companies that employ foreigners.

The thing is, if you voted Brexit you may not have wanted that to happen, but that’s the effect of your vote. And you were warned, many times, that by voting for Brexit you were helping the far right. By voting for Brexit you were ‘sending a message’ that immigrants weren’t welcome. By voting for Brexit you were likely to give more power to the worst kind of Tory. This is what I said on my blog in February, when the campaign was just beginning:

“What’s far more likely with Brexit is that an even more right-wing Tory government will come in, and with even fewer restrictions on their actions will destroy even more of what is left of our welfare state, our NHS, all those things about Britain that those on the left like. It shouldn’t be a surprise that Iain Duncan Smith and Chris Grayling are amongst the most enthusiastic Brexiters. Win the vote and you’re giving them what they want.”

That’s what happened – and I was far from alone in predicting it, and warning people that if they voted for Brexit they’d get more nastiness and a more right-wing government. Now we’ve got it, and if you voted for Brexit, that’s the result.

I’m not, as I’ve also been accused, ‘lumping all Brexit voters together’, suggesting that they’re all racists and xenophobes. Of course they’re not. They have all, however, helped the racists and xenophobes. That’s what the vote did. That’s cause and effect. Some people I know and respect have strong and detailed analytical economic reasons behind their vote – and some expounded them in response to my tweet – but, frankly, that’s by-the-by. Even if their economic arguments  are sound (and I remain unconvinced), they still unleashed the xenophobia.

Others try to suggest that what’s happened is all for the good. We should be making lists of foreigners, we should be replacing foreign doctors with Brits and so forth. That’s also all well and good – but in that case, why be angry with my Tweet? You should be proud of the consequences, if you like them.

I am, of course, one of the out-of-touch metropolitan elite, and I know it. I don’t expect to be listened to. I don’t expect to have any result – but I still have the right to be angry. And I am. I only wish I’d been angrier earlier.

More on Corbyn’s Digital Manifesto…

Yesterday a piece I wrote about Corbyn’s Digital Manifesto was published on The Conversation – you can find it here:

https://theconversation.com/corbyns-digital-meh-nifesto-is-too-rooted-in-the-past-to-offer-much-for-the-future-65003

The natural constraints of a short piece, and the requirements of The Conversation meant that I didn’t cover all the areas, and my own tendency to, well, be a bit strident in my opinions at times means that it may not have been quite as clear as it could have been. I would like to add a few things to what I said, clarify a few more, and open up the opportunity for anyone to comment on it.

The first thing to make absolutely clear is that though I was distinctly underwhelmed by the Digital Democracy Manifesto, it is far better than anything produced by Labour to date, and vastly better than anything I have seen by the Tories. My criticism of it was not in any way supporting what the Tories are currently doing, nor what they are likely to do. I used the word ‘meh’ in my piece because I wanted (and still want) Labour to be bolder, clearer, and more forward-looking precisely so that they can provide a better opposition to the Tories – and to the generally lamentable status quo on internet policy. As I tried (but perhaps failed) to make clear, I am delighted that Corbyn has taken this initiative, and hope it sparks more discussion. There are many of us who would be delighted to contribute to the discussion and indeed to the development of policy.

The second thing to make clear is that my piece was not an exhaustive analysis of the manifesto – indeed, it largely missed some really good parts. The support of Open Source, for example – which was criticised aggressively in the Sun – is to be thoroughly applauded. You can, as usual, trust The Sun to get things completely wrong.

I would of course like to say much more about privacy – sadly the manifesto (in some ways subconsciously) repeats the all-too-common idea that privacy is a purely personal, individual right, when it actually underpins the functioning of communities. I’ve written about this many times before – one piece is here, for example – but that is for another time. Labour, for me, should change its tack on privacy completely – but I know that I am somewhat unusual in that belief. I’ll continue to plug away on that particular issue, but not here and not now.

What I would hope is that the manifesto starts an open discussion – and starts to move us to a better understanding of these issues. If we don’t understand them better, we’ll continue to be driven down very unhelpful paths. Whether you’re one of Corbyn’s supporters or his bitterest opponents, that’s something to be avoided.

Dear Labour Plotters

Dear Labour Plotters

I’m not quite sure how I should address you – in a way I’m sorry to have chosen the word ‘plotters’, but after a little thought it seemed the best word, because what you seem to be trying to do does look very like a plot. Other words have been used – ‘coup’ is perhaps the most common – but ‘plot’ seems the best. Or at least I hope it’s the best, because ‘plot’ suggests there might actually be a plan behind your actions, a plan more than just ‘let’s get rid of our leader, and everything will be better’ along the lines of the Leave campaign’s ‘let’s win the referendum vote, and everything will be better’ plan which seems to be unravelling with remarkable speed since the hideous and momentous events of Thursday and Friday.

Of course I understand why you have not yet revealed the details of your plan – revealing those details might defeat the plan itself – but I do hope it’s a good plan, because you really need one. In making that plan, I’m sure you’ve taken full account of the need to persuade the Labour membership (including me) that your plan is a good one for Labour, and indeed for the country. I’m also sure that you must have learned all the right lessons from both last year’s Labour leadership contest and last week’s referendum. I do hope so, because from the outside it is a little hard to see that you have – but that may well be because all your plans are, quite justifiably, kept nice and secret from the rest of us.

Last year’s Labour Leadership contest

The thing is, last year’s Labour leadership contest was quite something, and I do wonder if some of you aren’t still smarting from it so much that you can’t see what actually happened. Jeremy Corbyn didn’t just win that contest, he absolutely thrashed all his opponents. It wasn’t just a victory, it was a crushing victory. That victory was produced by a great number of things and has been subjected to a good deal of analysis – but one key part of it was how abject the campaigns of his opponents were. They weren’t just bad, they were useless. So the first lesson that I’m sure you must have learned from the contest is not to campaign on the same basis as last time. And, to admit to the failure of last time’s campaigns.

Most of all, what I’m sure you’ve realised is that you can’t just turn back to the members and say ‘look, hasn’t Corbyn been useless, we were right all along, and you made an awful mistake in electing him’ and then expect them to smile and say ‘yes, you were right, and we were terribly stupid last year’.  People don’t like being told they’re stupid – regardless of whether they have been stupid or not. If your approach to replacing Corbyn is based entirely around convincing Labour members that they got it wrong last year, then your plots and plans are doomed to the same kind of abject failure as the last time.

I’m sure you realise this. I hope you do. I really hope you do, because if you don’t, all you’re doing with this plot is causing even more damage to the Labour Party at a time when the Labour Party is needed more than ever. To have driven the results of the EU referendum off the front pages just a few days after its momentous result is quite something – a depressing something.

The next Labour leader

I am sure your plans include plans for Corbyn’s replacement – and I understand in a way why it is not at all clear who that leader might be. I can understand why no-one would want to show themselves right now – but it is a little strange to stage a coup without any idea of what the regime after that coup would look like. The ‘leave’ campaign may have had no plan of any kind after winning the referendum, but at least we knew that it would probably result in Boris Johnson becoming Prime Minister – after all, that was the only reason he chose ‘leave’ over ‘remain’. With your plot, no-one seems to know who you’re planning to put in Corbyn’s place – but given the amount of time you’ve had to work out your plan, I’m sure you have an idea. Whoever it is, I assume it’s not someone that Corbyn defeated so easily last time around, or someone whose main claim to fame is having made a speech that had the Tory benches roaring in applause in favour of military action. With the Chilcot report due very soon, that might not be a very good look.

I hope that whoever you have in mind for the next leader is able to engage with both the Labour membership and the electorate – because both are needed. It’s no good being ‘electable’ if you can’t convince your own party to support them – and as some of you point out on a regular basis, it’s no good getting the support of the Labour membership whilst not being ‘electable’. It’s hard to be both – but whoever you have waiting in the wings to unveil as the next Labour leader and future Prime Minister needs to be able to do both.  I look forward to seeing who they might be – and how they can meet both of these requirements, whilst providing something new and different.

The EU referendum

…because new and different will be needed. Last week’s referendum can be interpreted in many different ways, but one thing it wasn’t was an endorsement of old politics. The idea that there was a consensus around the current Tory approach – elite austerity – has been shattered, so an approach based on the assumption that we need to accept that would be self-destructive at best.  Many voters last week believed they were voting for more funding for the NHS, for example – there was a reason that particular lie was on the side of that bus. This gives Labour a real chance – a chance that would be lost if we simply went back to what was offered last time around by all the candidates except Corbyn. Labour needs to offer hope and a way forward – but a way forward not based on lies, on hate, on fear. I’m sure you all realise this, and will share your vision of this way forward at some point soon.

Whilst the EU referendum offers an opportunity in this way, it also offers a huge trap – the trap of how to address people’s concern over immigration. Labour should be under no illusions that immigration was the critical issue in the referendum. It wasn’t a coincidence that the polls shifted towards ‘leave’ when Farage put immigration on centre stage – people are genuinely concerned about it. Many really believe, despite all the evidence, that immigration is what has caused the problems with the NHS, with housing, with education, with crime and so forth. The trap here is to accept their beliefs rather than addressing those beliefs. Silence is not an option – that much should be clear to everyone – but neither should sinking into the kind of populist xenophobia that UKIP uses and that the ‘leave’ campaign harnessed. It is equally useless – indeed counterproductive – to just tell people they’re wrong (just as you will find if you try that approach on Labour members who voted for Corbyn last year). If Labour had been strong enough and brave enough to take this issue on a decade or more ago, we might be in a very different situation – but it didn’t seem to matter so much back then, so it was all swept under the carpet. It can’t be any more.

There isn’t a magic bullet here – on immigration, or on replacing Corbyn. Both require intelligence, imagination, and a proper plan. Something new and something better has to be offered. On immigration, something real has to be offered to deal with the real problems that are being blamed on immigrants – and not just vague promises. On replacing Corbyn, you’ll need to convince us that you have something better to offer – a new leader that can inspire us, as well as fulfil the ‘electable’ requirements.  Given the coordinated nature of your apparent plot, I’m sure you’ve got someone waiting in the wings.

I look forward to their inspiring appearance.

Kind regards

A Labour Member.

Brexit: straw men and pipe dreams

The ‘Brexit’ game has begun, and with it what look like being months of deception, delusion and demagoguery.  Elections in the UK (and most places, it seems) are generally characterised by bile and bilge but this referendum looks like being one of the very worst if the first few days are anything to go by. Much of the bilge has come from the usual suspects, but what is disappointing to me is how many people on the left seem to be subscribing to a mixture of straw men and pipe dreams. Brexit isn’t an escape from the evil corporate lobbyists and unaccountable courts: it’s all but certain to hand over even more of our lives to the worst of those people.

TTIP

Some people, particularly on the left, seem to think that Brexit is a way to save us from the ravages of the TTIP (the ‘Transatlantic Trade and Investment Partnership’. Now the TTIP is deeply worrying – and is something people on the left should indeed be deeply concerned about. It’s a ‘free trade’ agreement – freeing up trade largely so that big corporations are less fettered by government ‘interference’ – that has been negotiated largely in secret, through the lobbying of those large corporations. Effectively, it could give those corporations mechanisms to override and avoid national laws – in ways that could damage workers’ rights, the environment, local businesses and employment and much more. It might help force the sell off of the NHS – at least that’s one of the fears. So yes, it’s a bit of a nightmare for people – in fact more than a bit of a nightmare.

And yet the idea that going for Brexit would help us avoid its impact is close to ludicrous. One of the key arguments made by Brexiters is that we’ll be able to negotiate our own trade deals. But what kind of deals? The only thing that those people behind Brexit – Grayling, IDS etc – might not like about TTIP is that it doesn’t go far enough. These are the people who actually ARE trying to sell off the NHS, to reduce workers’ rights, to stop the ‘green crap’. These are the people who have cosy meetings with exactly those corporations in whose benefit TTIP is drafted. These are the people who do cosy tax deals with Google, who have secret meetings with the lobbyists. They’re the people who go to Brussels to fight to stop the EU from restricting bankers’ bonuses. They’re the people fighting for the copyright lobbyists etc etc etc.

So yes, we might not have TTIP – though even that’s not clear – but we’ll almost certainly have something even worse. Even more favourable to the lobbyists. How much ‘democratic’ say have we had in our trade deals with Saudi Arabia? With China? How transparent have the negotiations with those two been? What are the terms? Do we even know?

History has shown that the only people to effectively fight against these deals within Europe are the European Parliament. It was the European Parliament who scuppered ACTA (the Anti-Counterfeiting Trade Agreement) with which TTIP has parallels, in 2012 – and they’re our last best hope against TTIP. Not the UK government, who would bend over backwards in favour of TTIP…. So if you want to fight TTIP, you need to stay in the EU and work hard on the European Parliament. Incidentally, that’s a little bit of democracy….

That European Court…

The idea of an overreaching ‘European Court’ interfering with British Justice has been mentioned more than once – even Boris Johnson talked of it in passing – but without either details or seemingly any understanding. When asked how and when it interferes, a couple of things seem to be at the tip of Brexiters’ tongues: prisoners’ votes and stopping us deporting terrorists. Aside from the fact that none of those judgments actually said what people seem to think they said, those cases are from the European Court of Human Rights (the ‘ECtHR) at Strasbourg, which is nothing to do with the European Union.  The court that is to do with the European Union is the Court of Justice of the European Union (‘CJEU’ – but often referred to as the European Court of Justice or ‘ECJ’) in Luxembourg. Strasbourg, Luxembourg, both Bourgs, so I suppose they seem the same, but they’re really very, very different.

There are reasons to be sceptical about some of the rulings but the CJEU has tended to help, not hinder, the people against precisely those groups that ‘lefties’ in particular would like to oppose. It was the CJEU that struck down the Data Retention Directive that effectively enabled mass surveillance in Europe. It was the CJEU that invalidated the ‘Safe Harbor’ agreement (in the Max Schrems case) fighting for people in the face of both big corporations (in this case Facebook et al) and governmental authorities. That’s what the ‘fundamental rights’ that Boris Johnson derided and Brexit would be likely to shrink really mean, just as the ‘red tape’ that Brexit promises to cut is likely to mean workers’ rights, environmental protection and so forth.

But we can vote them out…

The ‘sovereignty’ argument, for many, seems to rest upon the idea that though the current UK government are hideous, at least we can vote them out. It’s a nice idea – indeed, it’s the basis of our democracy – but in this case it’s part phantom part fantasy. Voting for Brexit won’t turn the UK into a socialist paradise. The voters of the UK won’t suddenly see the light and realise that they really want to vote for left wing parties and left wing policies. Whether you think it’s because Jeremy Corbyn is ‘unelectable’, because the ‘electable’ part of the Labour Party is still as useless and anaemic as it was in the leadership contest, because of the constant stream of sniping and undermining from ‘mainstream’ Labour MPs and endless newspaper and magazine columnists, Labour is not riding high in the polls, and shows no sign of doing so.

Add to the equation border changes, funding changes and new lobbying laws and the chances of a left wing government in the near future are even lower. Unless something very radical happens we’re not going to have a Corbyn triumph in 2020 – and to put your faith in such a thing happening is dangerous to say the least. And yet that’s what the ‘left wing case for Brexit’ essentially does. What’s far more likely with Brexit is that an even more right-wing Tory government will come in, and with even fewer restrictions on their actions will destroy even more of what is left of our welfare state, our NHS, all those things about Britain that those on the left like. It shouldn’t be a surprise that Iain Duncan Smith and Chris Grayling are amongst the most enthusiastic Brexiters. Win the vote and you’re giving them what they want.

So yes, we can vote them out – but the chances of us doing so before 2025 at the earliest are sadly small, and the amount of irreparable damage that can have been done before the is immense.

None of this is to suggest that the EU is a ‘good’ thing in absolute terms. What the Troika did with Greece is unforgivable. The continued embrace of austerity, the influence of the lobbyists and so forth are all hideous – but we shouldn’t let that blind us to the short and medium term effects of Brexit. It should also be remembered that for rich people – including the vast majority of politicians – this is all a bit of a game. Whatever happens they’ll be OK. They’ll make money if we stay and make money if we leave. There are profits to be made whatever happens, and they’ll find ways to make them. That’s why they can play games with highfalutin principles, claims about sovereignty and so forth. For the rest of us, though, this could have a much more real effect. That matters.