“I want my Country Back!”: Equality, Discrimination and Xenophobia after the Referendum

Diamond Ashiagbor*

We’ve been asked to offer some personal reflections, hopefully mediated by scholarly insight, on the UK referendum vote on EU membership. The quotation in my title comes from the rallying cry of the “Leave” campaign. The resonance of that slogan with the claim of Donald Trump to “Make America Great Again” is telling, as both imply a nostalgia, or rather a fantasy, for a lost state: one which is fully “sovereign”, unfettered by international or supranational obligations, freed from the constraints of a liberalised global trading regime whose rules it had been responsible for crafting, and – most significantly – almost entirely free from migrants.

Before the Vote

I voted “Remain” in the UK referendum for all the obvious reasons. Because I believe the EU, for all its faults and its challenges to the “embedded liberal bargain” which many Member States had been able to strike within their national economies, represents the best chance for cross-national solidarity and some defence against unfettered global capital. Because I didn’t want to see the most openly racist political campaign that I can recall since coming to the UK in 1975 as – yes – a migrant, succeed. Because I think the UK’s social and economic ills (the housing crisis, with housing-cost inflation outstripping stagnant wages, the lack of investment in social housing, the prevalence of a high-cost, high-turnover private rented sector; the underfunding of the National Health Service; vicious austerity policies; and the failure to alleviate the devastating social costs of the post-industrial decline) are the fault of elected national politicians not the fault of the EU or of immigrants. Because I would like to hope that the UK could remain a (relatively) open, reflective, socially progressive country.

 False Statements and First Impressions

 The key legislation governing eligibility to vote and the conduct of elections in the UK, consolidating and replacing earlier statutes, is the Representation of the People Act (RPA) 1983. The European Referendum Act 2015, in Section 4, made provision to incorporate most aspects of electoral law from the RPA 1983 into the referendum process. However, whilst Section 106 of the RPA makes it an offence to make false statements “for the purpose of affecting the return of any candidate at the election”, there was no attempt to introduce a false statement offence tailored to the different circumstances of a referendum vote – i.e., where voters are not choosing between candidates, but between different answers to a question.

Opinions vary as to the merits of attempting legislatively to compel a form of “truth in political advertising” – e.g., the risks to freedom of speech and the risk of the judicialisation of politics versus the reality of the weakness of political sanctions and the weakness of the media role in generating informed debate. But it is certainly the case that the absence of any real guidance to voters during a febrile referendum campaign left voters, as Claus Offe notes in this paper, to their own individual means of will formation.

As it was, the Leave campaign blatantly lied about an imminent accession to the EU of Turkey, about the UK’s net contribution, about eurozone bailouts, about the mechanics of trade, about the NHS, about threats to national security, and, of course, about immigration. It was relatively silent about, or downplayed, the impact of a “Leave” vote on the markets, Sterling, the union and the retention of Scotland within that union, the border with the Republic of Ireland, the Gibraltar/Spain border, the frontier at Calais, the need to continue compliance with all EU regulations in order to retain membership of the single market, the ease and impact of negotiating trade deals with non-EU states, the status of UK citizens in other EU states, EU citizens in the UK, acquired rights, and the status of legislation transposed from EU law under the authority of the European Communities Act 1972. They were also dismissive of “experts”: economists, foreign policy analysts, legal scholars and practitioners, historians, other Europeans, and world leaders.

 Inequality, Racism and Xenophobia

Deeply entrenched economic and educational inequality drove the “Leave” vote; and it appears that socially-destructive inequality will be a significant outcome of the vote. One of the more thoughtful of the many post-referendum attempts to analyse the reasons, dynamics and demographics behind the vote was published by the Joseph Rowntree Foundation (JRF), a British social policy research and development charity, which seeks to understand the underlying causes of poverty and disadvantage, to identify ways of overcoming them, and to show how social needs can be met in practice. The JRF found that groups of voters who have been pushed to the margins of society – “left behind” by rapid economic change – who live on low incomes (i.e., earning less than £20,000 a year where the national average is £26,000 a year), have few qualifications and lack the skills required to prosper in the modern economy, were more likely than others to endorse Leave. Whilst income and poverty mattered greatly to attitudes and voting with regard to the EU, with persistent and growing inequalities likely to strengthen this national divide, the JRF found that educational divides mattered more: differences in the Leave/Remain vote measured by educational attainment were far more striking than differences measured by income level. To this social, geographic and economic divide must be added a cultural one: the more disadvantaged voters who voted Leave are also united by values that encourage support for more socially conservative, authoritarian and nativist responses.

This relates to, although it does not fully explain, least of all justify, the relationship between socio-economic inequality, the Leave vote, and xenophobia. For instance, how to explain those areas of the UK which have equally suffered severe economic deprivation in the post-industrial era (e.g., parts of Scotland, parts of London) but which did not vote to leave? The nativist values of many Leave voters are important here, and certainly underlie the racism on the part of some of those who voted Leave, pointing to a key difference between Scottish self-identity and (civic) nationalism, and English self-identity and (nativist) nationalism: “in Scotland there continues to be a resurgence of nationalism – but it is a civic-based nationalism, which means that a Scot might be Muslim, Christian, Asian or white, and championed as such by Scottish nationalists. It’s not idyllic – Scottish nationalism continues to have a thread of antipathy towards the English – but it is genuinely civic in orientation.” As Matthew Kenny highlights, those most inclined to support Brexit were far more likely to choose Englishness as their primary national identity, while those who rated their sense of Britishness more highly, tended to favour staying in the EU.

As the UK Equality and Diversity Forum has also pointed out, the referendum result shows the urgent need to recognise socio-economic factors and relate them to equality and human rights. There is a greater need, following the referendum, to recognise and remedy inequality, including the deep socio-economic and geographical fissures which the referendum result has revealed. Ironically, however, the aftermath of the vote to leave and the related rise of an emboldened extreme right-wing political discourse (and one might also add, an effective right-wing coup within the governing Conservative Party) have all combined to create a toxic mix which has been hostile to the consensus within Parliament since the 1970s to use public policy and legislation to tackle inequality across a growing number of “grounds”, i.e., types of discrimination. In particular, the pre-referendum proposal to replace the Human Rights Act of 1998 (which had incorporated the European Convention on Human Rights into UK law whilst retaining the right of individuals to sue in the Strasbourg court) with a new “British Bill of Rights” is dormant, but not abandoned. Repeal of the Human Rights Act may, according to a recent report of the UN Committee on the Elimination of Racial Discrimination, lead to decreased levels of human-rights protection on the part of the state. Also troubling is the dramatic reduction in the role and responsibilities of the Equality and Human Rights Commission (EHRC, Great Britain’s national equality body), as well as in the resources allocated to it, following the adoption of the Enterprise and Regulatory Reform Act 2013 aimed at cutting “red tape”, a development which also attracted the concern of the UN Committee on the Elimination of Racial Discrimination (UN CERD).

More immediately, causally related to the referendum campaign and result have been increases in hate crime, with the UN CERD expressing concern at the sharp increase in the number of racist hate crimes, especially in England, Wales and Northern Ireland, in the weeks prior to and following the referendum. There were 3,219 incidents of hate crime reported to police in the fortnight from 16 June to 30 June, a 37 per cent rise on the previous year. Certain EU nationalities have been particularly targeted: the majority of xenophobic incidents were directed at citizens from eastern European countries, with more attacks against Poles than all the other nationalities put together, according to a Guardian survey of EU embassies in London. The Polish consular service in London, Manchester and Edinburgh has logged 31 incidents of reported hate crime since 23 June, including eight attacks in August-September.

As many have observed, the referendum campaign was marked by divisive, anti-immigrant and xenophobic rhetoric, with prominent political figures playing a significant role in normalising such discourse in a way which emboldened hate speech, hate crime and violence. Whilst much of this has been directed at those perceived to be east European migrants, it has had an inevitable spill-over effect into hatred towards ethnic or ethno-religious minority communities and people who are visibly different. Gary Younge sanguinely observes that the Leave campaign did not invent racism, and certainly the deployment of bigotry to suit electoral ends has a longstanding tradition in the UK. Further, not everyone, or even most, of the people who voted Leave were driven by racism. However, the atmosphere of racial animus and the debased standards of political discourse have affected the country and marked a meaningful shift away from the self-perception (or perhaps delusion) that the UK was becoming a more socially liberal country. Incidents in the post-referendum landscape are like a memory from the 1970s. To appropriate a phrase: I want my country back.

* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2871428). The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.

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