Counter-Narrative to Islamophobia 4 (UK) looks at Acknowledging structural issues and racism(s). Find the full list of ten and their details here. This work was undertaken in 2017 – 18, and remains pertinent. The ten counter-narratives will be indexed on this site too here.
The metanarrative of allowing Muslim space intersects heavily with this section. As Kundnani (2017) identifies:
“Islamophobia is ultimately a symptom of bigger, wider, deeper issues in British society. Islamophobia is not just ever about Muslims, it’s about a deep social crisis. But the experience of Islamophobia is also particular to Muslims and has its own particular feel and texture and history and experience and so forth. The challenge in taking it on is to both enable a space where Muslims can articulate and define their own experience and their own response to Islamophobia in Britain while at the same time being able to link that particular story to the wider crisis that Islamophobia needs to be linked to.”
Part of that wider crisis is a wider issue of racism(s) in the United Kingdom. Whilst the UK has been celebrated (or demonized) for its equalities culture in the past, notably the Race Relations Acts of the 1960s and 1970s that brought some palpable change in the way minorities are treated, there is a case to make that that culture stagnated and if anything has found itself under attack as a result of unbridled Islamophobic narratives normalising racism in society once more. This is particularly evident in the post-Brexit rise in street violence against racialised minorities, whether those minorities were from European countries or BAME communities and / or Muslims. Zempi (2017) lays this at the door of the:
“that toxic language that was used during Brexit, the arguments used by different camps in terms of favouring Brexit but also the actions of Trump for example banning Muslims from certain countries and rhetoric and language used against Muslims in the political context in the UK and US. I think it has legitimised hostility and discrimination from ordinary people, not just the far-right.”
This space is important if the journey started in the report of the Scarman inquiry report (1981) which took the idea of racism within institutions as more than simply the accumulation of the prejudices of individuals, the ‘bad apples’ but as structural, as the McPherson inquiry report (1999) phrased it ‘institutional racism’. This manifests in a variety of ways, but notably with regard to taking action for redress against injustice or simply accessing the structures and rules of the state, the following issues are hugely restricted for Muslims:
- Accessing justice
- Immigration rules
- Accumulation of debt around (i) and (ii)
- The roll out of functions of the state to the private sector (v) How hate crimes are recorded, investigated and prosecuted
There are a number of equalities measures and protections in law, yet accessing these for many Muslims and other marginalized groups is hampered by the operation of structural barriers.
Discrimination in the workplace runs at high levels, and accessing employment is fraught with similar difficulties (see Merali, 2017a for a summary of relevant research). Provisions to tackle discrimination at work based on religion came into force at the end of 2003 in response to requirements to comply with the EC Equal Treatment Framework Directive. However, a number of problems arose immediately that made the provisions inaccessible, and where accessed still problematic. Notably legal aid was not initially available for these cases meaning that those bringing cases had to find thousands of pounds to fund cases themselves. This period was also one where lawyers taking on pro bono cases found themselves also targeted and measures brought in to make pro bono lawyers liable for costs should their case fail. As legal aid has been rolled back across the UK in recent years, even when there was a minimal amount of legal aid assigned to such cases in more recent years, as with all such cases the amount was nominal (a few hundred pounds) which is supposed to cover dozens of hours of work across a period of years. This impacted not just these cases, but immigration cases and indeed civil and criminal casesxi across the board. The introduction of fees for employment tribunals is another barrier for accessing justice. Lawyers working in the field noticed a significant drop in cases after the introduction of fees (the fees were recently removed after a legal challenge). The impact of such measures is to ensure that despite the potentiality of redress, there are sufficient barriers to ensure that that redress is almost unachievable. There need to be any number of reversals of such barriers (Ahmed, 2017, Anonymous 1, 2017, Choudhury, 2017).
Set within the wider context of case law developed around equalities provisions over a twenty-year period, there is an argument that case law has developed to hamper applicants rather than support their claims. The case of London Borough of Lewisham v Malcolm (2008), where an appeal to the House of Lords had the impact of making: “more difficult for a disabled person to prove disabilityrelated discrimination. The judgment means that for some types of disability discrimination cases the correct comparator for a disability-related discrimination claim is now the same as for a direct discrimination claim.” (Equality and Human Rights Commission, 2016). This reflects anxieties around the religious discrimination rules which placed the burden of proof for discrimination on the applicant rather than the employer (as opposed to evidentiary burden as established by the Race Relations Act, 1976). As such issues around the burden of proof, are also pressing if there is to be any prospect of making existing legal provisions for equality a reality (Ahmed, 2017).
Additionally, a lack of properly funded legal aid defence is crucial not just for Muslim defendants but has been highlighted as one of the determiners for the disproportionate sentencing and thus disproportionate prison populations of Muslims and other racialized communities.
Aligned to this is the issue of the duty solicitor system, whereby those questioned in criminal or antiterrorism investigations may call a solicitor who is ‘on duty’ to represent them. For those who do not have access to the names of solicitors conversant in the details of the cases they are being questioned for, this representation, particularly in anti-terrorism related investigations and interviews e.g. Schedule 7 questioning, means they do not get appropriate or adequate advice. In such cases the advice given may result in defendants’ not fully being able to exercise their rights, or exercise an effective defence.
Family proceedings have long been accused of institutional racism, including judgments and referrals based upon stereotypes and racist tropes rather than actual problems and issues (see, e.g. Islamic Human Rights Commission, 2000). With regard to restrictive immigration rules, it was noted by interviewees (Ahmed, 2017, Ansari, 2017) that the financial threshold regarding bringing spouses or family members to the UK meant that Muslims, who hail from a largely working-class background, were disproportionately affected in being unable to meet the threshold, whilst also being disproportionately likely to want to bring family or spouses to the settle in the UK. As such, a full review of these rules and the clear discriminatory impact they have on certain communities must be a first port of call. Within that review, attention needs to be paid to the anecdotal evidence and impression amongst relevant professionals that rejections also have a bias against these communities. These accusations of bias need further investigation, which must be done by independent researchers but at the same time have relevant support including possibly financial, from the relevant state authority (in this case the Home Office). There also needs to be political will from government to publicise the findings and implement the recommendations. The cases of the Burnley Report (Holden & Billings, 2008) and the Trojan Horse inquiries (e.g. Kershaw, 2014 and Clark, 2014) highlight the trend that where government wish to make a point regarding the deficiency of Muslim communities or actors they can commission research, but when the findings – however rigorous – do not meet with that agenda, these reports are given so little support in their dissemination they are effectively suppressed (Burnley Report) or only those parts which meet the agenda are used without regard to findings and recommendations that go against the government’s views (Brighouse, 2104 and Education Committee, 2015)[xii].
The operation of the legal profession and its oversight bodies needs review. The failure to accept an understanding of institutional racism is summarised by Ahmed (2017):
“The SRA (Solicitors Regulatory Authority, the disciplinary body for lawyers for solicitors) … have been the subject of serious allegations of racial biases in disciplinary action. Statistically it’s borne out that BME solicitors are the subject of far more disciplinary actions compared to non BME lawyers. There was also a report and the conclusion funnily enough was that there is a disproportionate amount of actions taken against BME solicitors compared to non BME solicitors but that there wasn’t evidence of racism so that’s the whole point, the whole thing I was speaking about presumptions. When it’s proven statistically that certain things are happening, you have to do better than just say it’s nothing to do with race. They can’t just get away with it by saying it’s nothing to do with race. Well what is the reason for it? And is there a plausible reason for it? And if they can show that there’s a plausible reason for it then fine. So, there is a lack of progress on this issue from a number of organizations and number of institutions.”
The recording, investigation and prosecution of hate crimes need serious review (MEND, 2014, Islamic Human Rights Commission, 2013, Ameli et. al, 2004b). Whilst the Director of Public Prosecutions Alison Saunders stated in August 2017 that:
“the CPS, police and others in the criminal justice system are ready to listen and, where we have the evidence, to hold those committing hate crimes to account. Victims should not suffer in silence and, as our new guidance makes clear, victims can be supported at all stages of the criminal justice process.”
There remain serious criticisms that the caveat “where there is evidence” means that the majority of reports cannot be taken forward because they boil down to a he said / she said situation. This coupled with patchy or non-existent training for frontline police officers and investigating officers in recording hate motivation means that many cases that do go into the prosecution system are often not flagged as hate crimes (Choudhury, 2017). Particular attention to language used in crime or speech has been flagged up by ENAR (2017), and they recommend the setting up of specialised units to initiate prompt and effective investigations.
Despite this critique, there was a note from Afzal (2017) that in her own cases of two Islamophobic attacks a few years apart, that she saw a shift in the reporting and logging culture that was positive with marked improvements.
There needs to be serious revision of the epistemologies of anti-racism and equalities within institutions. The roll out of state functions to the private sector and public-sector employees was a recurring critique, notably:
- The requirements imposed by the Counter-Terrorism and Security Act 2015 for public sector employees to refer anyone they suspect of extremism to the police;
- The imposition of duties and penalties on private landlords, schools and other public services to report data or indeed individuals whose immigration status is in doubt. This includes reporting people who have overstayed their visa, and denying accommodation and medical and educational services to over-stayers and those whose immigration status is deemed dubious[xiii].
The impact of these measures includes, but is not restricted to:
- A surveillance state in general being in operation where the functions of its policing are outsourced to service providers and private citizens. This situation impacts Muslims and other racialized communities disproportionately (Kapoor, 2017 cf above).
- The enforced homelessness and destitution of people caught up in the cycle of failed immigration applications and appeals.
- The denial of basic services to those deemed outside the pale, essentially normalising inequality as a normative function of the state.
There must be a change in this culture at the highest levels that acknowledges that institutional racism, of which institutional Islamophobia is a part, exists and must be challenged through:
- Revision of Legal Aid provisions. Legal Aid must be provided in order to allow access to justice, but also to prevent the vast accumulation of debt (Ahmed, 2017) that litigants, defendants or immigration applicants and sponsors fall under the current system. Those affected are disproportionately from Muslim and other racialized communities. A caveat to this is that the level of Legal Aid offered must not be tokenistic. Recent changes to Legal Aid rules have made legal professionals either bear the brunt of financial cuts, or decline cases because they remain, even with minimal Legal Aid, financially prohibitive for their firms’ existence.
- Properly funded legal clinics as a way to obviate the Legal Aid drought created by restrictions on Legal Aid funds is one solution suggested (Ahmed, 2017) that would require targeted interventions by the state to ensure that there is access to legal redress on issues such as immigration and employment.
- Properly funded legal aid defence, and systems of duty solicitors who are adequately experienced for criminal defendants and those questioned or charged under antiterrorism laws.
- A change in the evidentiary burden in employment discrimination cases where the burden of proof falls on an employer that they did not discriminate rather than on an (potential) employee that they were discriminated against (Ahmed, 2017). There is precedent for this in the Race Relations Act (1976) superseded by the Equality Act 2010 and making the approach consistent should be uncontroversial.
- Research into the impact of immigration rules on Muslims and other racialized and marginalized communities e.g. financial thresholds, levels of rejection, need to submit evidence of return (Ahmed, 2017).
- Forward movement on implementing policies that understand how institutional racism (McPherson, 1999) operates and how to tackle structural discrimination that results. The call for this in regard to the issue of institutional Islamophobia was made as far back as 2004 in the Mubarek Inquiry report.
- There needs to be a political push to ensure that the anomalies and injustices of the current equalities culture are erased. This requires a recommitment to the McPherson principles (1999).
- End of the policing of communities through unaccountable private individuals (e.g. landlords), charities, the NHS, and schools and universities.
The foregoing is in some ways backward looking towards certain ‘high’ points of equalities culture in the past. This is not a case of unwarranted and misleading nostalgia, though there are dangers in creating a mythical past devoid of critique of its failing (Kapoor, 2017). It is more a case of setting a baseline (Kundnani, 2017 above) from which a movement forward can be established.
Further problems and possible solutions based in civil society highlighted in interviews revolved around strategic litigation (Ahmed, 2017, Choudhury, 2017) and support for individual cases.
The possibilities and timing for strategic litigation appear to be narrowing, and the lack of public funds to bring such challenges also makes this a restricted route for civil society. Where cases have a prospect of succeeding and there is as a result an out of court settlement, or some form of resolution, this then does not get media uptake (either because of confidentiality clauses in settlements or the fact that a settlement is not as sensationalist as a win). Litigation that is settled out of court generates no written decision, and thus has no precedential effect.
Thus, between these impediments the possibility or utility of such litigation is a serious issue. Where there are significant outcomes e.g. the giving of substantial damages in a settled employment case, confidentiality clauses mean that the impact and possible normalisation through media coverage of the outcome of the case is negated (Ahmed, 2017, Choudhury, 2017). Where a case such as that brought against the government on the imposition of full naked body scanners at ports in the UK (Islamic Human Rights Commission, 2013), was resolved by the government removing said scanners in favour of those which did not violate citizens’ rights, the coverage of such a case was minimal and again any normative impact of the acceptance that this measure, which had been brought in on the back of a narrative of securitisation, was lost by little or no media coverage or discussion (Choudhury, 2017).
The role of the media in this regard is crucial and thus some recommendations must fall onto their shoulders and cross over with counter-narrative eight below. With regard to a counter-narrative based on acknowledging structural racism, the media need to move beyond the double-bind of lackadaisical and sensationalist reporting and focus instead on providing balanced and normative coverage of legal developments and the need for changes in the law. The press has shown when it has taken on causes it can have an impact, with the Daily Mail being credited (and taking credit Dacre, 2012) in many ways for changing opinion and even putting political pressure on the police and legal system over the Stephen Lawrence case (though careful analysis of the Daily Mails’ claims suggests these claims were exaggerated and that where there have been positive consequences these were unintended, Cathcart, 2017). Likewise, they stand accused of shifting the focus towards a demonised representation of Muslims and help push the law towards increasing disproportionality towards Muslims (Poole, 2016, Ameli and Merali, 2015).
The setting up of more community initiatives and the community and independent funding of civil society organisations providing advocacy services and legal support for individuals needing support is an increasingly needed support strategy. Whilst one organisation has an in-house solicitor for employment and immigration issues (Islamic Human Rights Commission, 2015) there is a dearth of legal support structures within civil society that mirrors in part the general decline of such support across BME civil society, but is also an indictment to the lack of organisation within civil society on issues which have existed for a long time.
Regardless of any lack in this regard, the critique of governmental failure to tackle or even complicity in creating an environment of hatred and hostility for Muslims is a recurring one. Haley (2017) highlights this complexity:
“That’s been of particular concern to our campaign [Scotland Against Criminalising Communities] i.e. state and institutional Islamophobia. Concerns about Islamophobia are deflected into concerns about what you might call street Islamophobia and the actual views held by the general public and all the time the debate takes the purpose of should the government being doing more about that. From my perspective [the] government and government policies… are doing a great deal to stimulate and feed Islamophobic attitudes more generally so I think there’s a lack of correct balance in dealing with these things. There’s an excessive emphasis on dealing with Islamophobic views in the general public and that failure to get to grips with Islamophobia institutionalised in both government and party politics and other authorities or institutions.”
The situation where civil society is in effect providing advice and services (support for victims of hate crimes and advocacy support services) (Bouattia, 2017), legislating and making policy that suppresses democratic values, equality and racism like Prevent (Aked, 2017), imposing discriminatory and restrictive immigration and detention regimes (Ahmed, 2017 and Anonymous 4, 2017), closing down discussion and denying the ability of Muslims to enter dialogue with the state and the institutions of the state regarding their experiences and expectations (François, 2016 and 2017, Ameli et. al, 2004a, 2004b, 2005a, 2005b, 2006, 2007, Kundnani, 2017, Williams, 2017) marks a situation where civil society regardless of its successes or failures cannot make a sustained change when there is no partner in the process of transformation from the government.
The daily impact of structural racism requires serious investigation, but it appears even before this process begins there is a need to establish once more the structural nature of racism and other societal problems.
Arzu Merali worked on this project while head of research at Islamic Human Rights Commission. The project spanned 8 European countries and involved IHRC and five universities. IHRC was responsible for the UK, Germany and France sections of the project. Find out more about the project here[EXTERNAL LINK].
xi Curtailment of legal aid in criminal cases has also disadvantaged many Muslims who do not qualify for full legal aid in criminal matters making it even harder to have an effective defence for whatever crime petty or otherwise.
[xii] In the case of the Burnley Report, research was commissioned on the effect of segregated schooling. This came in the wake of a number of media and political proclamations about the existence of state schools where a very high percentage of the intake were Muslim children. Using the term enclavisation, the authors found contrary to popular tropes that: “The all-White school is unable by itself to overcome the entrenched White extremism that is mediated through the family, the peer group and the enclave. This strongly suggests that in towns with sizeable ethnic minorities, unless White young people are exposed during their school careers to fellow pupils of different ethnic and religious backgrounds, attitudes of White superiority and hostility towards those of other cultures are unlikely to be ameliorated and smouldering resentments will continue into adult life. Enclavisation, however, assists the development of liberal and integrative attitudes among young Asian/Muslim people by providing an oasis of liberality in a strong and cohesive sub- community.” (Billings and Holden, 2008: 4) In the case of the Trojan Horse inquiries, after 5 such inquiries, media and political attention was directed to an exchange of WhatsApp messages between teachers where one or more homophobic and one sectarian messages were exchanged. This was highlighted as a justification for the accusation of extremism when the reports themselves found that there was no such charge to made against any of the schools, teachers, governors or pupils involved.
[xiii] At the time of writing cases involving people who have reported crimes to the police, have then been detained for immigration violations. This includes a woman who reported being kidnapped and raped, and a Polish man whose immigration was perfectly legal.
