By Christopher Harding
One of the most worrying aspects of the recent campaigning in the UK ahead of the referendum on UK membership of the EU, and the subsequent outcome of the referendum, was the opportunity provided to express more openly and forcibly feelings which appeared to be Eurosceptic or even more deeply Europhobic or xenophobic. On the one hand, public opinion in the UK has long been considered insular and Eurosceptic, but the referendum seemed to trigger the more open and confident expression of xenophobic views and suggests a polarisation of opinion on Britain’s international and European roles. On the other hand, Britain also has a reputation as a welcoming and tolerant society in its general attitude towards those from other countries. This contribution is a reflection on the reality of tolerance and intolerance in contemporary British society and how recent events in the UK fit into the wider European legal and cultural landscape of human mobility across frontiers.
Now, some two months after the fateful referendum on EU membership, some of the initial conflicting feelings of euphoria and dismay seem to have abated somewhat, as most people come to terms with the prospect of a long slog of negotiations on ‘exit’ for the UK, whatever the outcome of that may prove to be, and whatever both ’negotiation’ and ‘United Kingdom’ (rather, Disunited Kingdom) may now mean. But some reflection should still take place on what proved to be one of the most disturbing aspects of both the referendum campaigning and of the result and immediate aftermath of the vote. This was the surfacing and more openly public expression of sentiment which is at least prejudiced and at its worst xenophobic. In general terms this was evident in the utopian political campaigning in favour of the legal removal of non-British, and in particular other EU, nationals from British soil. More specifically and dramatically, it was evident in the assassination, a week ahead of the referendum, of Westminster MP Jo Cox, apparently in the (deranged ?) cause of ‘Britain first’. It is difficult to estimate how representative, widespread or strongly held such sentiment might be. It would appear to be felt much less in London and Scotland, and here in notoriously Europhile north Ceredigion (in Aberystwyth over 70 per cent voted to remain). But there was a palpable sense that such prejudice was becoming more confidently and openly expressed, and that the referendum was a trigger for that happening.
Some local examples can be reported from this Europhile quarter of mid-Wales and elsewhere in Wales. There were some violent clashes locally during the campaign between supporters of the opposing camps. After urging its readers to vote to remain the office building of the regional newspaper The Western Mail in Cardiff was daubed with abusive graffiti. Following the result, it became common for Remain voters to suddenly see neighbours, friends and colleagues who had voted to leave in a different light, as transformed into a kind of ‘other’. Rallies to counter xenophobia started to occur, including a large ‘solidarity’ rally in Aberystwyth a week after the result. And inevitably there was a great deal of social media abuse. Thus – stronger expressions of feeling on both sides and a sudden sense of a polarised society. And the ripples of disquiet began to spread further. Within a few hours Aberystwyth University lost 100 applications from EU nationals to come to study at the University. A colleague visiting Malaysia at the time encountered concern from intending undergraduates – will it still be safe go to the UK, will we still be welcome ?
Does this mean that British society has become less tolerant, more racist, and more xenophobic, and a less comfortable and even dangerous place for those from elsewhere, overturning what has often been described by incomers as a noticeably welcoming, tolerant and open-minded culture ? Or what might this situation reveal about the impact and fate in the UK of the EU Framework Decision 2008/913/JHA on combating expressions of racism and xenophobia? To argue the matter in a more legalistic way, would the expression of concern about immigration and free movement constitute xenophobia in that sense, as publicly inciting to hatred, especially if based on misinformation ? Or would such legal argument itself amount to an exaggeration and over-dramatisation of genuine concerns, arising from a lack of information and poor understanding? Or should political, moral and even legal responsibility be located among those political actors who knowingly manipulate a poor public appreciation and knowledge of human mobility in its various manifestations? These are interesting questions, worth serious consideration. But at the same time to pose such questions is in itself a political act. To choose to address the matter in such legal terms, and especially in terms of possible criminal liability, is a robust response, in a way raising the stakes in the debate. As reactive strategies there may be a world of difference between a solidarity rally and formal legal action alleging the violation of criminal law rules against hate speech.
This should remind us of some of the European (EU and more widely European) principles which some may fear (unjustifiably) to have now entered a twilight zone in the British Islands. For instance, there is the oft-repeated call from the EU to its Member States to employ effective, proportionate and dissuasive sanctions in relation to certain prohibited activities (including expressions of xenophobia). A seasoned legal mind might well enquire: what exactly does that mantra mean in practice and can we ever answer that question? But a more practical legal mind might interpret the mantra as just good moral sense, and advise not to use criminal law too hastily or hot-headedly. As continental Europeans (though probably not the British) might say: think about ultima ratio, the last resort principle. Or, to put the matter in blunt political terms, be careful not to stoke up Eurosceptic UKIP passions by accusing the UKIP lobby of practising xenophobia.
And this kind of discussion needs to base itself on some considered fact-finding into the actual state of play and state of feeling among the majority of people. Admittedly, in the heat of the result, it might have been tempting for Remain voters to reflect angrily about ‘silent xenophobes’ among the Exit voters. But care should be taken to distinguish between a genuine concern and puzzlement (‘I cannot understand the rapid transformation of my small town into a place where so many people from other parts of Europe now live and work’) and something more sinister (‘I do not like and I fear these incoming different people’). Care should be taken to distinguish political motives, such as ‘I shall conveniently make use of misinformation to achieve narrow party political goals’ from ‘I shall manipulate ignorance and misunderstanding to serve my genuine dislike and fear of the ‘other’’.
Of course, identifying this actual state of feeling and actual state of play requires some thorough and challenging research into what is happening in British society and that should be an important task for academics and for a responsible media and political community, and one which should be given priority. Pending that, it is possible to fall back on anecdotal evidence and general impression, and some of that may be reassuring, suggesting that a good deal has changed in European and British society since the middle of the twentieth century – and that may be due in no short measure to the longer term political, moral and legal impact of measures such as the European Convention on Human Rights. Witness the robust official and popular condemnation of recent instances of what is now referred to as hate speech. Witness the hugely emotive and widely popular reaction against the atrocity of the MP’s murder. And few people with any political or legal acumen seriously expect the next step for the British Islands to be a renunciation of the Human Rights Convention (as the new Prime Minister was reported to have said at an earlier stage: ‘I am not going there!’) To assume that ‘Brexit’ equals a complete British repudiation of a developed European political, moral and legal culture, to which the UK itself has contributed in no small measure, is both naïve and unduly pessimistic.
To be sure, the referendum was an ill-advised trigger for the more open expression of some mean-minded and ignorant, but also genuinely fearful sentiment about human mobility in the early twenty-first century. But doubtless in most modern societies there will be some feeling of fear and distrust of the other, and that needs to be addressed and managed, politically, socially and legally. And perhaps, again more hopefully, the dismay and disruption which has followed this referendum vote will provide some motivation to grapple more determinedly with the underlying concerns and feelings, however ill-founded, which undoubtedly explain that particular outcome of popular democracy. For the Disunited Kingdom, there is however one clear immediate lesson: that polities should be careful how they manage democratic processes, and in particular resort to ill thought-out and simplistic referenda questions, and also should reflect on the risks and folly in maintaining a much-lauded unwritten constitution, which provides no answers to serious and less predictable questions.