Challenging Racism in Britain and Germany (Migration, Minorities and Citizenship)

Challenging Racism in Britain and Germany Zig Layton-Henry and Czarina Wilpert

Migration, Minorities and Citizenship General Editors: Zig Layton-Henry, Professor of Politics, University of Warwick; and Danièle Joly, Director, Centre for Research in Ethnic Relations, University of Warwick Title include: Muhammad Anwar, Patrick Roach and Ranjit Sondhi (editors) FROM LEGISLATION TO INTEGRATION? Race Relations in Britain Naomi Carmon (editor) IMMIGRATION AND INTEGRATION IN POST-INDUSTRIAL SOCIETIES Theoretical Analysis and Policy-Related Research Malcolm Cross and Robert Moore (editors) GLOBALIZATION AND THE NEW CITY Migrants, Minorities and Urban Transformations in Comparative Perspective Adrian Favell PHILOSOPHIES OF INTEGRATION Immigration and the Idea of Citizenship in France and Britain Sophie Body-Gendrot and Marco Martiniello (editors) MINORITIES IN EUROPEAN CITIES The Dynamics of Social Integration and Social Exclusion at the Neighbourhood Level Simon Holdaway and Anne-Marie Barron RESIGNERS? THE EXPERIENCE OF BLACK AND ASIAN POLICE OFFICERS Danièle Joly GLOBAL CHANGES IN ASYLUM REGIMES (editor) Closing Doors HAVEN OR HELL? Asylum Policies and Refugees in Europe SCAPEGOATS AND SOCIAL ACTORS The Exclusion and Integration of Minorities in Western and Eastern Europe Christian Joppke and Ewa Morawska TOWARD ASSIMILATION AND CITIZENSHIP Immigrants in Liberal Nation-States Atsushi Kondo (editor) CITIZENSHIP IN A GLOBAL WORLD Comparing Citizenship Rights for Aliens Zig Layton-Henry and Czarina Wilpert (editors) CHALLENGING RACISM IN BRITAIN AND GERMANY Jørgen S. Nielsen TOWARDS A EUROPEAN ISLAM Jan Rath (editor) IMMIGRANT BUSINESSES

The Economic, Political and Social Environment Peter Ratcliffe (editor) THE POLITICS OF SOCIAL SCIENCE RESEARCH ‘Race’, Ethnicity and Social Change John Rex ETHNIC MINORITIES IN THE MODERN NATION STATE Working Papers in the Theory of Multiculturalism and Political Integration Carl-Ulrik Schierup (editor) SCRAMBLE FOR THE BALKANS Nationalism, Globalism and the Political Economy of Reconstruction Steven Vertovec and Ceri Peach (editors) ISLAM IN EUROPE The Politics of Religion and Community Östen Wahlbeck KURDISH DIASPORAS A Comparative Study of Kurdish Refugee Communities John Wrench, Andrea Rea and Nouria Ouali (editors) MIGRANTS, ETHNIC MINORITIES AND THE LABOUR MARKET Integration and Exclusion in Europe

Migration, Minorities and Citizenship Series Standing Order ISBN 0-333-71047-9 (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

Challenging Racism in Britain and Germany Zig Layton-Henry and

Czarina Wilpert

Editorial matter, selection, Introduction and Afterword © Zig Layton-Henry and Czarina Wilpert 2003 Chapter 3 © Zig Layton-Henry 2003 Chapter 13 © Czarina Wilpert 2003 Chapters 1, 2 and 4–12 © Palgrave Macmillan Ltd 2003 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2003 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N. Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0–333–64317–8 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Challenging racism in Britain and Germany / [edited by] Zig Layton-Henry and Czarina Wilpert. p. cm. – (Migration, minorities, and citizenship) Includes bibliographical references and index. ISBN 0-333-64317-8 1. Great Britain – Race relations. 2. Germany – Race relations. 3. Racism – Great Britain. 4. Racism – Germany. I. Layton-Henry, Zig. II. Wilpert, Czarina. III. Series. DA125.A1 C46 2003 305.8’00941–dc21 10 12

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Contents List of Figures

vii

List of Tables

viii

Preface

ix

Notes on the Contributors

xii

Introduction Zig Layton-Henry and Czarina Wilpert

Part I

1

Citizenship and Nationality

1 Models of Citizenship and Rules of Naturalisation Rainer Bauböck

23

2 The German Concept of Citizenship and Nationality Dieter Oberndörfer

46

3 Citizenship and Nationality in Britain Zig Layton-Henry

60

Part II

Racism and Racial Inequality

4 Racism and Racial Inequality: the British Case in a European Context Malcolm Cross 5 Dealing with Racial Harassment: the Development of Legal Strategies amongst Local Authorities Marsha Prescod

79

109

6 Anti-Semitism in a United Germany Werner Bergmann

122

7 The Racist Portrayal of Gypsies in the Media Franz Hamberger, Irina Bohn and Kerstin Rock

133

8 The Mobilisation of the Extreme Right in Germany Wolfgang Kühnel

146

v

vi Contents

Part III 9 10

11

12

13

14

Strategies for Combating Racism

Race Laws and Policy in the United Kingdom Colin Munro

165

Enforcing Anti-Discrimination Law in Britain: Here There Be Monsters! Martin MacEwen

189

Changing Employers’ Practices: from Exclusion to Inclusion Mary Coussey

208

Anti-Discrimination Legislation in Germany: from Abstinence to Activism? The Influence of the New EC Equal Treatment Directive on Future Legislation Rainer Nickel

221

Racism, Discrimination, Citizenship and the Need for Anti-Discrimination Legislation in Germany Czarina Wilpert

245

Afterword: Reflections on Challenging Racism and Discrimination in Britain and Germany Zig Layton-Henry and Czarina Wilpert

270

Index

276

List of Figures 4.1 Police stops and searches, 1987/88 4.2 Ethnic minority population in Inner and Outer London, 1991 4.3 Inner City unemployment rates for males aged 16 and over by ethnic group, 1991 4.4 Outer city unemployment rates for males aged 16 and over by ethnic group, 1991 4.5 Indexes of socio-economic groups 4.6 Examination results by ethnic group and gender, 1988/89 4.7 A-Level scores of university applicants, 1990 4.8 Qualification index by ethnic group in Greater London, 1991 4.9 Proportion of ethnic groups in higher employment by city location, 1991 4.10 Self-employment rates by ethnic group, Great Britain, 1991 4.11 ‘Entrepreneurship’ rates by ethnic group, Great Britain, 1991

vii

94 96 97 98 99 100 100 102 102 103 104

List of Tables 1.1 8.1 8.2 10.1 10.2 10.3 10.4 10.5 10.6

Five test criteria for five models of citizenship in democratic states Election results of European extreme right-wing political parties Percentages in each EU member state opposed to the influx of foreigners, 1991–3; ‘not accept them’ Outcome of case, by ethnic group of applicant Outcome of case, by sector of employer Outcome of case, by nature of the complaint Outcome of case, by whether applicant employed by respondent at time of making complaint Type and source of Section 66 complaints, 1978–88 Type and source of Section 66 complaints, 1989–98

viii

26 151 153 194 194 195 195 196 197

Preface and Acknowledgements In Britain the battle in challenging racism has been primarily the struggle to fulfil the legal citizenship rights of African-Caribbean and Asian Britons and make them effective. Formally they are citizens, but informally they have been denied equal rights. Citizenship means more than the legal membership of a state: it means equal rights, equal treatment and equal opportunities. It thus means access to upward mobility and positions in management, business, public employment, and in the political system. Most of all it means freedom from racist violence, and equal treatment by the criminal justice system. Britain has considerable experience with legislation to combat racist discrimination but the effectiveness of this legislation has been hard to assess and there have been constant demands for stronger measures. The political will to enforce equal opportunity legislation seems to have been much stronger in Northern Ireland where more account is taken of equality of outcomes than is the case in the rest of the United Kingdom. The first hesitant steps to combat racial discrimination were taken in 1965 with the Race Relations Act. This banned discrimination in public places, provided for civil remedies and established a Race Relations Board to assist enforcement through conciliation. Incitement to racial hatred was also made a criminal offence, with significant penalties. A new Race Relations Act was passed in 1968 after research by Daniel1 showed that massive levels of discrimination existed in the employment and housing markets. The new Act made racial discrimination unlawful in employment, housing and the provision of goods, facilities and services, including education. Eight years later, discriminatory outcomes showed that racial discrimination was still substantial but had become more covert. While discriminatory advertisements and openly racist recruitment practices had declined, African-Caribbean and Asian Britons were underachieving in education, and were suffering far higher levels of unemployment and worse housing than their fellow citizens. The 1976 Race Relations Act tried to combat this by outlawing indirect discrimination as well as direct, but enforcing this legislation has been extremely difficult. The Commission for Racial Equality has continually pressed for more effective legislation and in 2000 the Race Relations (Amendment) Act was passed extending the scope of the legislation to the police and other public bodies hitherto exempt. ix

x Preface and Acknowledgements

It was only gradually accepted that discrimination by the state against non-whites in immigration policy at the border had serious negative consequences for race relations within the country. It legitimised the widespread prejudice against specific groups such as African-Caribbeans, Pakistanis and refugees who were seen as unwanted by the government and therefore by society as a whole. This prejudice has remained despite official acceptance that Britain has become a multicultural society and that diversity is recognised as a source of vitality and enrichment. In Germany, the struggle has been primarily the battle to achieve formal legal citizenship for foreign settlers, and specifically for the second and third generations born in Germany. This struggle is gradually being won as the citizenship laws are amended. A major breakthrough has been achieved with the introduction of ius soli for the children born in Germany of legal foreign residents under certain conditions. Naturalisation rates of foreigners in Germany are rising, albeit from a low base. The battle to allow dual nationality is less successful, but gradually more people in the ruling Social-Democratic and Green Coalition government argue for accepting new naturalisation and citizenship regulations without requiring a denial of the citizenship of origin. However, the leadership in the opposition CDU/CSU parties continue to mobilise against tolerating dual citizenship on the grounds of endangering loyalty and integration, which for some means the inability to assimilate into German society. This position holds that issues of loyalty are important in deciding who should have the right to participate in politics and be employed in the public service. These parties assume that their constituencies believe that national interests and national security are best served if citizens are wholly committed to one, and only one, state. The extent of discrimination in Germany is less well researched than in the UK, partly because discrimination against non-citizens is legal. However, there is a need to document cases of discrimination to reinforce demands for legislation and support the case for an agency to enforce equal treatment. In a number of areas immigrants have been successfully integrated into German society. As has been pointed out elsewhere, the German government may not have recognised itself as a country of immigration but, owing to demands of German unions, even ‘Guestworker Policy’ allowed recruitment only on conditions of equal social rights with respect to salary and working conditions applicable under German labour laws and regulations. Even so loopholes remained based on treaties with the governments of origin and

Preface and Acknowledgements xi

which for a long time made exceptions, for example in the area of retirement benefits. Certainly the legal rights of migrants defined as ethnic Germans and therefore candidates for immediate citizenship provided a better legal basis for integration. Nevertheless, even these migrants entering in the later years have often been stigmatised as ‘Soviets’ or ‘the Russians’. Many other groups such as the Turks, Gypsies, Jews and black Germans suffer discrimination with – to date – little recourse to juridical protection. As in Britain it has proved extremely difficult to change the culture of organisations and society as a whole in favour of equal treatment and equal opportunities, but some success has been achieved. However, attempts to eliminate subtle forms of discrimination such as indirect discrimination and institutional racism have proved almost impossible. The new initiative by the European Union through its directive based on Article 13 of the Treaty of Amsterdam requiring member states to enforce equal opportunities and eliminate racial discrimination should be an important step in creating a more comprehensive approach and a much more positive environment for those seeking redress against discriminatory acts. This book has been prepared to contrast the different approaches in Britain and Germany to issues of citizenship, immigration and integration. Citizens in both countries may feel that their experiences are unique but in both countries there are important social movements struggling, like their European neighbours, to combat racism and discrimination and to create a more secure and democratic society where everyone independent of their ethnic origins, skin colour or religion, is treated with respect and equity. The editors gratefully acknowledge the assistance and support of the Anglo-German Foundation, which provided the funds for a conference in Berlin at which early drafts of several of the contributions were first presented, and for help with translating and processing the contributions. In particular we are grateful to Connie Martin and Ray Cunningham for their support. We also thank the contributors for their co-operation in preparing and redrafting the various chapters. ZIG LAYTON-HENRY AND CZARINA WILPERT Note 1 W. Daniel (1968), Racial Discrimination in England (Harmondsworth: Penguin Books).

Notes on the Contributors Rainer Bauböck is a political scientist and Senior Researcher at the Austrian Academy of Science Research Unit on Institutional Change and European Integration. He teaches at the Universities of Vienna and Innsbruck. From 1986 to 1999 he was Assistant Professor at the Institute for Advanced Studies, Vienna. In 1998/99 he was a Fulbright Fellow and Member of the School of Social Science at the Institute of Advanced Study, Princeton, NJ. In 1990–91 he was an Erwin Schrdinger Fellow at the Centre for Research in Ethnic Relations, University of Warwick, UK. His research interests are in normative political theory and comparative research on citizenship, migration, nationalism and minority rights. He is the author of Transnational Citizenship: Membership and Rights in International Migration (Edward Elgar, 1994); Blurred Boundaries: Migration, Ethnicity, Citizenship (Ashgate, 1998) (co-edited); The Challenge of Diversity: Integration and Pluralism in Societies of Immigration (Avebury, 1996) (co-edited); and From Aliens to Citizens: Redefining the Legal Status of Immigrants in Europe (Avebury, 1994) (ed.) Werner Bergmann is a sociologist and Professor at the Center for Research on Anti-semitism, Technical University of Berlin. Dr Bergmann’s fields of research are sociology and history of modern antisemitism, xenophobia and right-wing extremism; and the theory of collective behaviour, especially social movement and collective violence. His most recent publications include: Antisemitismus in öffentlichen Konflikten: Kollektives Lernen in der politischen Kultur der Bundesrepublik 1949–89 (Campus Frankfurt/New York 1997); Antisemitism in Germany: the Post-Nazi Epoch since 1945 (Transaction Publishers, 1997) (with Rainer Erb); ‘Antisemitismus in der Bundesrepublik Deutschland 1996’, in R. Alba et al. (eds), Deutsche und Ausländer: Freunde, Fremde oder Feinde? (Opladen 2000) (with R. Erb); co-editor with C. Hoffmann and H. W. Smith, Exclusionary Violence, Antisemitic Riots in Modern German History (University of Michigan Press, forthcoming). Mary Coussey is a Senior Research Associate of the Judge Institute of Management Studies, University of Cambridge, specialising in equality and diversity. She was previously Director of Employment at the xii

Notes on the Contributors xiii

Commission for Racial Equality (1988–94) and worked in the Cabinet Office responsible for equal opportunities policies for ethnic minority civil servants, and for people from different community backgrounds in Northern Ireland (1987–88). She is the UK (Home Office) representative and Chair of the Council of Europe’s Specialist Group on the Integration of Immigrants. She is currently carrying out research with the Centre for Public Law and the Judge Institute of Management Studies, University of Cambridge, into the enforcement of the UK anti-discrimination legislation. Her recent publications include ‘Demonstrating that Diversity Pays in Europe’, Worldlink, 9, 3, July 1999; ‘Ethnic Diversity in the EU’, in Interculturalism in Europe: Societal Diversity and Social Policy within the European Union (Ashgate Publishing, 2000); Making a Difference: the Contribution of Ethnic Minorities to the EU (European Commission, 1998); and Cultural Diversity and Equality between Women and Men (Council of Europe, 1997) (with Wvokke Knocke). Malcolm Cross is the Director of the Centre for European Migration and Ethnic Studies (CEMES) and past editor of the Journal of Ethnic and Migration Studies (JEMS). In 1999 he was Marie Curie Professor of Sociology in the University of Naples and he was the Foundation Director of the European Research Centre on Migration and Ethnic Relations (ERCOMER), Utrecht University , The Netherlands (1993–98). His most recent work (with Cristiano Codagnone) is for a book entitled The Rise of Ethnic Conflict in Europe: a Sociological Interpretation (Polity Press, forthcoming). Franz Hamburger is Professor of Education at the University of Mainz. His co-authors, Irin Bohn and Kerstin Rock, are social scientists. Franz Hamburger has published numerous articles addressing the responses of the receiving society to migration in the fields of education and social work. Wolfgang Kühnel is Professor of Sociology at the University of Applied Sciences for Administration and Law. He has completed extensive research and numerous publications on the sociology of youth and education, social movements, deviancy, right-wing extremism, and violence in childhood and youth. His most recent publication is Dazugehörig und ausgeggrenzt: Analysen zu Integrationschancen junger Aussiedler (Belonging and Marginalised: an Analysis of Young Ethnic Germans’ Chances of Integration) (München-Weinheim, 2000). Zig Layton-Henry is Professor of Politics at the University of Warwick and former Director of the ESRC Centre of Research in Ethnic

xiv Notes on the Contributors

Relations. He is author of The Politics of Immigration (Macmillan, 1992) and editor of The Political Rights of Migrant Workers in Western Europe (Sage, 1990). His main research interests include citizenship, immigration policy and transnational communities. Martin MacEwen was Vice-Principal of the Edinburgh College of Art, Heriot Watt University. He established the Scottish Ethnic Minorities Research Unit with Glasgow Caledonian University as a joint venture in 1986. From 1990 he has published three books on race and the law, an area in which he is an acknowledged expert. He was a founder member of the Scottish Council for Racial Equality in the 1970s and, more recently, the Scottish Discrimination Law Association. He is a member of the Human Rights Forum and the Race Equality Advisory Forum for Scotland. He has participated in expert committees examining race equality issues for the Council of Europe (1990), the Anglo German Foundation (1993), the Equal Treatment Commission in the Netherlands (1998) and the Ministry of Justice in South Africa (1998) and has advised the Commission for Racial Equality on racial harassment issues. He was a visiting professor at the University of Western Australia in 1994 and is now Visiting Professor at the University of Stellenbosch, South Africa. Colin Munro is Professor of Constitutional Law at the University of Edinburgh, which he joined in 1990, having previously taught at the Universities of Birmingham, Durham, Essex and Manchester. He is the author of Studies in Constitutional Law (second edition 1999) and other books and articles on public law, media law and human rights. With his colleague Wilson Finnie, he provided the national report on race laws in the United Kingdom for the European Commission’s survey which was published in 1993. Rainer Nickel is Assistant Professor at the Institute of Public Law of the Johann Wolfgang Goethe-University in Frankfurt and partner of the law firm Stark & Partners in Frankfurt. His fields of work include European Law, German Constitutional and Public Law, and Antidiscrimination Law. He holds a law degree from the University of Frankfurt (1990) and the German Bar Exam (1993). His PhD thesis on Equality and Difference: a Diverse Republik (Nomos, 1999) won the Darmstadt Legal Society Award of Excellence in 1998. From 1998 to 2001 he was researcher/ legal adviser for Judge Prof. Lerke Osterloh at the German Federal Constitutional court in Karlsruhe. His current research focuses on issues of the structural design of EC institutions and on Constitutional Law theory, especially free speech and cultural

Notes on the Contributors xv

rights. Recent publications include articles on the new Equal Treatment Directive of the EU, on the German Federal Constitutional Court and its relation to the ECJ and the ECHR, and on the Milosevic trial in The Hague. Dieter Oberndörfer is Emeritus Professor of Political Science at the Albrecht Ludwigs University, Freiburg, and Director of the Arnold Bergstraesser Institute for Cultural Research. The holder of many honorary awards, he was a previous Director of the Institute of Political Science in Freiburg and has held the Steven Muller Chair for German Politics at the Bologna Center of the Johns Hopkins University. The principal focus of his research and publications is in the field of political theory, the history of ideas, political opinion research, and development policy. He has published 26 books, 17 as editor, and 140 journals in academic journals. Marsha Prescod is a qualified solicitor who has worked in law centres, local government and the private sector. In the late 1980s she developed an interest in legal remedies to combat racial harassment, particularly street attacks and those around victims’ residences. From 1990 to 1996 she worked in local government formulating policies and procedures to facilitate the use of statutory powers to tackle racial harassment. An experienced public speaker, she has run courses for local authorities, for the solicitors’ professional body and for national training organisations. She has advised individuals, voluntary organisations and local authorities wishing to develop corporate strategies in this area, and has issued legal proceedings against perpetrators of harassment. Currently in private practice, she is developing a legal website to provide advice and information. Czarina Wilpert is a native of Los Angeles, California, and a social scientist at the Berlin University of Technology. Her research addresses multiple aspects of international migration, especially questions relating to the future of the descendants of migrants and the social organisation of migrants from Turkey in Germany. Her most recent work addresses issues of immigrants in the informal labour market and the meanings attached to citizenship and nationality. Dr Wilpert is a core member of the TSER Research Network of the European Community on Working on the Fringes: Immigrant Business, Economic Integration and Informal Practices.

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Introduction Zig Layton-Henry and Czarina Wilpert

Racism and racist violence are not unique to Britain and Germany. Hostility to immigrants and asylum-seekers is widespread across the whole of Europe. Incidents of violence against them are not uncommon and racial discrimination is an everyday occurrence in the streets, in factories and in offices. The actions involved in instances of discrimination may not appear in every single case to be very serious, but their cumulative effects are massive. The political impact of racism and antiimmigrant feelings can be seen in the increasingly harsh policies designed to deny the right of refugees to claim political asylum in Europe, and in the desperate measures many refugees take trying to enter Britain and other European countries. The tragic deaths of fiftyeight young Chinese men in June 2000 in the back of a container lorry at the port of Dover show the lengths to which people will go to seek security and a better life. The political impact of prejudice can also be seen in the sustained support for the Front National in France during the 1980s and 1990s until its split in 1998 and subsequent collapse. More dramatic was the success of Jörg Haider’s Freedom Party in gaining 27 per cent of the vote in the Austrian elections in September 1999, and its entry into the governing coalition. Other publications have documented the extent and intensity of racism and theorised about the various forms of racism in European countries in the 1990s (Miles and Thränhardt, 1995). This publication differs from these in that our prime objective is not to make a theoretical analysis of racism, but to challenge racism by examining some of the factors which encourage racism and discrimination against immigrants and ethnic minorities, and analysing strategies that have been proposed to combat racism. These are issues which can be influenced in the political arena. 1

2 Challenging Racism in Britain and Germany

To accomplish this objective we focus on the cases of Britain and Germany, while addressing the role of the state in this process. Thus, we look first at how the state, through its traditions and practices, may offer support for these beliefs, and specifically at the role which citizenship has played and continues to play as a means of inclusion and exclusion. Secondly, we are searching for improved ways to combat racism, encourage effective forms of social control and improve legislation for protecting those subject to racism and discrimination. The violent forms of racism which swept Germany in the wake of unification – the mobbing and violence against asylum-seekers in Hoyerswerda and Rostock, the fire-bombing murders targeting guestworker families originating from Turkey in Mölln and Solingen, the attacks on blacks, Vietnamese, Poles and others identified as ‘outsiders’ in a united Germany – have led to a search for explanations and solutions. In the aftermath of its Nazi past the Basic Law (Constitution) of the new German Federal Republic was explicitly formulated to forbid all forms of racism and discrimination, whether based on national origins, race, language, beliefs, religion or political ideology. The two Germanys, western democratic or socialist totalitarian, were reconstructed with the eyes of the world upon them. Social controls functioned. The dominant position in the two new republics opposed racist ideologies. The term ‘Race’ became an unacceptable scientific, political or social category. The liberal asylum laws of the Federal Republic, granting asylum to political refugees from totalitarian regimes, demonstrated the humanitarian ideals of the new republic. Germans from both east and west believed that racism was relegated to the past. The role which the monocultural nation-state aspiring to a unification of all Germans, and thus proposing only a temporary recruitment of foreign workers,1 might play for beliefs about rights to belongingness and exclusion, was not foreseen. Although all the major western European countries recruited foreign labour in the 1960s, until the 1973 oil crisis, Germany recruited the largest contingent and was the slowest to accept that it had become a country of immigration. Policy-makers coined the term ‘guestworkers’ and this made it more difficult to substitute the policy of temporary labour recruitment for an immigration policy for long-settled foreign residents. The long-term consequences of official policies, which recruited guestworkers and housed generations of foreign families while at the same time refusing to develop an integration policy for these resident foreigners, were ignored.

Zig Layton-Henry and Czarina Wilpert 3

The significance of these policies for beliefs about who has rights to belong became apparent with the accomplishment of German unification and the parallel entry of ethnic Germans, who were legislatively protected as legitimate entrants from eastern Europe, and asylum seekers who were regarded as illegitimate incomers (Wilpert, 1993). For the first time in fifty years racist violence became a public issue. In the postwar era Britain has had a lengthier preoccupation with issues of racist violence as well as legislation to protect minorities against violence and discrimination. In 1958, the racist violence in Notting Hill, an area of London, and in the Midlands town of Nottingham shattered the complacency about black immigration to Britain. It contributed to political pressure for immigration controls against Commonwealth citizens as a means of assuaging public concerns. These controls were introduced in 1962. It also raised awareness of the high levels of racial discrimination, and stimulated academic research (Banton, 1985). This in turn contributed to the first antidiscrimination legislation which was passed as the first Race Relations Act 1965. In the 1970s and 1980s there was continuing concern in Britain about racist attacks and violence (Bethnal Green and Stepney Trades Council, 1978; Witte, 1996) and also about the failures of race relations legislation to reduce discrimination, particularly in employment. These concerns continue to the present day. The unprovoked murder of the young black teenager Stephen Lawrence on 22 April 1993 is only one example of a larger number of racist murders. What is exceptional about the Stephen Lawrence case is the tenacity of his parents’ campaign to bring his killers to justice and the admission of the police at the public inquiry that racism had influenced their response to his murder (Norton-Taylor, 1999). The focus on Britain and Germany serves to sharpen our awareness of the kinds of approaches which might be taken to change the context in order to delegitimise discrimination, to provide legal redress and to establish new norms and social controls for the protection of ethnic minorities and foreigners against violence. Following Mölln and Solingen the debate in Germany took a new turn, and new themes were introduced to the public arena: rights to citizenship, the issue of dual nationality, and even a proposal for a children’s citizenship (Kinderstaatsbürgerschaft) were some of the themes which arose in this context. Changes were made in Germany’s alien law, which ameliorated the rights of access to citizenship specifically for resident young foreigners of the former guestworker populations. For the first time since the recruitment of foreign workers,

4 Challenging Racism in Britain and Germany

the minister of the interior began to record data on racist hate crimes and criminal acts of violence towards minorities and foreigners. A campaign group has been formed to study the possibility of legislation to protect foreigners and ethnic minorities against discrimination. The leap from issues of racist violence to citizenship may appear to be too great, but this is exactly what occurred in 1993. Directly following the events in Mölln, in March and April of 1993, the citizenship issue received for the first time in the 1990s serious debate in the German parliament. Politicians of all political persuasions began to grasp the significance of rights to citizenship for long-term resident foreigners. Many experts in Germany today recognise that a reform of the citizenship laws encouraging access to citizenship for long-term foreign workers and their families could provide a basis for greater rights, a first step toward equality. As the following chapters in this book prove, the notions of citizenship have been used in both Britain and Germany as a means of social differentiation and social exclusion, albeit in different historical processes and contexts. Several authors in this book argue, moreover, that the evolution of notions of citizenship in Great Britain, as well as the development of legislation against racism and discrimination there, must be seen together, in the context of immigration and rights to immigrate. The following chapters focus on the history and changing significance of citizenship and nationality in Germany and Great Britain. The concepts of citizenship and nationality have entirely different origins in the two cases. In the British case the concept of citizenship is very recent and evolved out of the necessity to differentiate rights to legal entry to the UK between those who had a close connection to the UK through birth or residence in the country from those who were at one time imperial subjects. The German tradition of ius sanguinis is tied to Germany’s notion of the nation-state founded on one culture, one nation (one people in the sense of ethnos) and a biological principle of descent. The German concepts of citizenship and nationality are thus strongly linked. Oberndörfer argues that in all republican states based on a liberal constitution a basic tension exists between universal human rights and national identity. Nation-states have had different criteria upon which they base national identity and thus different points of contention. An ethnic (völkisch) ideology dominated Bismarck’s Reich and the Weimar Republic, although these were both multiethnic states. Oberndörfer explains that the Germans adopted a people’s nationalism, to legitimate

Zig Layton-Henry and Czarina Wilpert 5

the creation of a state for all Germans. People with the same language and culture had the right to rule themselves in their own state, and only they and their descendants are entitled to hold full citizenship. Multiracial or multinational states contradict the assumption that each nation or people should have their own state. Minorities have to be assimilated otherwise the unity of the state is undermined. People’s nationalism thus excludes minorities and is negative towards immigration except of those with the same ethnicity as the host population. It was National Socialism which ethnically cleansed Germany. German descent alone defined the right to citizenship and this right to citizenship was confirmed in the founding of the constitution of the Federal Republic of Germany. Article 116 of the German constitution granted rights to German citizenship to Germans expelled from enclaves in eastern Europe. This decision not only contrasts with the lack of policy towards the former guestworkers, resident foreigners and their descendants, it also supports the notion of a community based on ethnic descent. Postwar immigration has created a large permanently resident foreign population in Germany and if this population continues to be marginalised and excluded from the mainstream of society, the longterm consequences for Germany could be very grave. The doctrine of people’s nationalism is now outdated as Germany grows in international confidence as the leading nation in the European Union and is increasingly affected by the globalisation of international economic and political systems. As the foreign population in Germany increases, attracted by relative economic prosperity and political stability, it is increasingly likely that further reforms in the citizenship laws will be introduced. In Britain the focus of concern has been on racist violence and ethnic minority racial exclusion, particularly in the labour market. Layton-Henry argues that the issue of citizenship has been less central, because at the start of postwar immigration in the 1950s, Britain retained an expansive imperial concept of citizenship that derived from feudal times when virtually everybody in the King’s domains were his subjects. As the Empire expanded, the number of the King’s subjects grew quickly as people in newly acquired colonies became British subjects and, as Britain had no citizenship legislation which distinguished between subjects in mainland Britain and elsewhere, all British subjects had the same citizenship rights which could be exercised in the mother country. As the colonies became independent Commonwealth countries, they introduced their own citizenship

6 Challenging Racism in Britain and Germany

legislation, but their citizens still retained their status as British subjects under the British Nationality Act of 1948. It was only in the 1980s that the British government created a new status of British Citizen under the British Nationality Act 1981. This new citizenship was restricted to people with a close connection to the United Kingdom through descent from a citizen or permanent settlement in the country. The consequence of this expansive imperial tradition was that postwar immigrants from colonial and Commonwealth countries in West Africa, the Caribbean, Cyprus, Malta and the Indian subcontinent were all British subjects with full social, civil and political rights. Immigrants from non-Commonwealth countries such as Poland and Italy were foreign nationals without citizenship rights but they could naturalise, if they wished, after five years’ residence. The children of foreign nationals automatically qualified as citizens if they were born in Britain, under the provisions of ius soli. The largest number of postwar immigrants to Britain came from Ireland. In 1948 Ireland formally withdrew from the British Commonwealth but the political rights of Irish nationals were allowed to continue under the provisions of the Ireland Act 1949. The reasons for this special arrangement were that the Labour government did not wish to deprive large numbers of people settled in Britain of rights they were used to exercising. Moreover, most of these voters were Labour Party supporters whom the government did not wish to lose. The continuation of voting rights for Irish citizens was also justified on the grounds of the historic link between Britain and Ireland and the fact that the North of Ireland remained part of the UK. Politicians and their civil service advisers also held the view that nothing should be done to discourage immigration by making Irish people feel less welcome. Many British employers were very dependent on Irish labour. The anomaly by which Irish people could vote in British elections was much resented by sections of the Conservative Party and there were occasional campaigns within the party to remove the vote from the Irish citizens. However, in 1984 the Irish parliament extended national voting rights in Eire to British citizens resident in the Republic. This transformed the anomaly into a reciprocal arrangement and defused the resentment felt by some British Conservatives. The vague, liberal and expansive definition of British subject/citizen was undermined by postwar immigration control legislation which progressively removed the rights of Commonwealth and colonial citizens to unrestricted access to the UK and to permanent settlement. As these rights of access and settlement were removed, it became

Zig Layton-Henry and Czarina Wilpert 7

increasingly untenable to continue the myth that to be a British subject was the same as being a British citizen. The right of access to and settlement in one’s own country is a fundamental right of citizenship and those British subjects who did not have this right were relegated to a form of second-class citizenship. The British Nationality Act of 1981 attempted to resolve this inconsistency by creating a new definition of British citizen restricted to those with close connections to the UK and with full rights of access and settlement. This new definition was to be closer to those of other European Union countries. However, the imperial legacy was hard to shed and the Act created new citizenships for people in the colonies, namely Citizenship of the British Dependent Territories. It also created British Overseas Citizenship for those British subjects without close connections to the UK resident in independent countries. The situation has been made more complicated by legislation which gives special status to people in Gibraltar, the Falkland Islands and some in Hong Kong. However, the return of Hong Kong to China and the ending of British responsibility for its population has prompted the British government to give full British citizenship to the remaining Citizens of British Dependent Territories. As British Overseas Citizenship cannot be inherited the trend will be towards a unified concept of British citizenship. Immigration control legislation has driven the reforms in the British nationality law even to the extent of causing the partial abandonment of ius soli so that children born in Britain to people not permanently settled no longer qualify for automatic citizenship. It is interesting to reflect that postwar immigration has had a major impact on debates about citizenship and nationality in both Germany and Britain. In Germany the impact of postwar immigration has been to open up a debate in favour of liberalising the laws of naturalisation and in particular to allow dual nationality. In Britain, however, postwar immigration contributed to the reappraisal of Britain’s role in the world and a reassessment of her obligations to the peoples of her former Empire. This resulted in legislation restricting full British citizenship to those with close connections to the UK. The issue of the most appropriate form of citizenship for a liberal democracy is discussed in this book by Bauböck. He attempts to illuminate the principles governing the liberal democratic model of citizenship by comparing four ideal typical models which illustrate the range of possibilities in the current debate over citizenship and naturalisation rights. His intention is to show that the democratic state is a special kind of association and that its liberal principles of membership

8 Challenging Racism in Britain and Germany

cannot be adequately described by using an analogy with other forms of community or associations. The analogies employed by Bauböck for communities are derived from Walzer. They are: the club, the church, the city, and the shareholder corporation. After analysing these four forms of voluntary societies, Bauböck sketches elements of what he would consider to be characteristics of a liberal citizenship regime. All five cases are analysed on the basis of six criteria: extent of openness and restrictions to outside entry; the potential of multiple memberships; the possibility of voluntary departure; involuntary expatriation; rights for non-members; and the inclusiveness of collective goals. Finally, Bauböck contrasts the four analogies to a liberal democratic model for an immigration country. The basic norms of this model are: • The equality of all citizens as members of the state, which implies equality of civil rights. • The comprehensiveness of membership, granting civil rights to all persons who are permanent members of the society in which the state is organised. • The substantial elaboration of these rights with respect to civil liberties, rights to political participation and social welfare rights. In comparing the advantages of a liberal democracy with the analogies of voluntary associations, Bauböck expresses the aspiration to go beyond Walzer’s analogy of a club. His argument with respect to the club is that in a liberal democracy the current members and their representatives cannot base their rules of entry to membership on their own discretion; rights to membership are clear and the state is required to respect these. The criteria for membership are also not comparable to acceptance of a religious doctrine, but acceptance of a democratic legal system which does not require a deeper ideological belief. The essential criterion for membership is social membership won through social ties within the society of the state where one is a candidate for citizenship. This right is best proven through the length of stay. The right to citizenship in this context should be open to the totality of the resident population. This recommendation may not be as radical as it appears, as permanent residents in western democracies tend to have most of the civic and social rights that citizens enjoy, including access to the labour market, free education for their children and access to social housing. It is in the area of political rights where restrictions are most

Zig Layton-Henry and Czarina Wilpert 9

noticeable, and in particular, the right to vote in national elections. In recent years a number of countries have extended local voting rights to permanent residents, notably Sweden, Ireland, Denmark, the Netherlands and Norway. The European Union is also encouraging the growth of a European citizenship and identity among the citizens of its member states by extending voting rights at the local and European levels to all nationals of member states wherever they reside within the territories of the Union. Citizenship is not only a legal and political concept but includes a social dimension as well (Marshall, 1950; Faist, 1995). If individuals or groups are systematically discriminated against and are unable to achieve equal treatment and redress for the wrongs they have suffered, then they may be described as having less than full citizenship. Until recently women were legally and politically in a formal situation of lesser rights and could therefore be accurately described as being second-class citizens. It is often argued now that women continue to be systematically discriminated against in western democracies, especially in the labour market where they are disproportionately restricted to lower positions and less well-paid jobs. As the labour market is the gateway to income, status and security, this continues to place women in a less than equal position to men and their struggle for equal rights and opportunities continues. This book is concerned with forms of social exclusion which affect visible ethnic minorities in Britain and Germany. This exclusion may take a range of forms of inequality, disadvantage, discrimination, disincorporation, exploitation, harassment, violence and other constructions of ‘otherness’. These forms of exclusion are widely diverse and range from modest forms of social rejection to racist violence (Vertovec, 1996). We are also concerned with strategies to combat racism and discrimination in Britain and Germany. However, to combat discrimination and racism effectively these concepts need to be defined and their extent delineated in the countries under discussion. Cross considers racism and racial inequality in Britain. He argues that racial inequality is sustained by three separate forces, namely racism itself, class, and social space. He argues that racism is a historically determined set of mythologies which has three basic types. Firstly, there are notions of biological inferiority based on assumed racial categories. Secondly, there is a type based on cultural differences which are assumed to be coherent and self-generating. Thirdly, there is a form of racism based on the identification of people as strangers or ‘others’ because their interests and loyalties are assumed to lie

10 Challenging Racism in Britain and Germany

elsewhere. Cross specifically denies that perceived racial inequality is always the result of racism or that the role of government intervention has been as important as many have argued in shaping the current situation. The role of local and national governments, he argues, has been reactive rather than proactive in determining policy outcomes. They have responded to powerful external pressures rather than created or shaped them. Postwar immigrants were recruited to fulfil roles as workers in cities which were rapidly changing as some areas were economically highly prosperous and expanding while others were poor and in decline. This situation meant that racism, social class and geographical location or social space interacted to create and sustain racial inequality. In Britain, Cross argues that the Commission for Racial Equality located its anti-discrimination strategy within a model of racial equality which could not cope with the broad social trends which hit ethnic minorities particularly hard in the 1980s and 1990s. These broad social forces – which include the fall in real incomes of the poorest groups since 1979, the reduction of urban funding, and the development of urban development corporations which are targeted at declining areas of non-ethnic minority populations – are all linked to government policies which cannot easily be addressed by a government agency which focuses on discrimination at the individual or company level. Cross uses case studies of the Caribbean and Muslim communities in Britain to support his arguments. In the case of the Caribbean community he argues that social class, inner-city decline and changes in the labour market combine with educational failure and racism to create substantial levels of ethnic inequality. In the Muslim case, where one might expect a significant degree of cultural exclusion, when controls are introduced for variables such as age and area of residence, ethnic inequality is much less than the objective figures of, for example, unemployment, suggest. Bangladeshis in inner London exist in a pocket of extreme poverty and unemployment, but elsewhere they are much more prosperous and professional and just as likely as other British Asians to be doing well in education or as entrepreneurs. However, racist violence, a long-standing source of concern in Britain, remains a problem. It emerged as a political issue in the mid1970s when the extreme right-wing National Front was very active in both contesting local and national elections and also on the streets, where it was involved in marches in areas of ethnic minority settlement. These marches were deliberately organised to provoke violence, gain media attention and thereby attract new recruits. It was widely

Zig Layton-Henry and Czarina Wilpert 11

believed that the National Front encouraged a climate of violence against members of immigrant communities and their anti-racist allies. By the 1980s racial harassment and racist violence were well established on the political agenda with the Home Office and the police being involved in initiatives to define and record racist incidents and to establish guidelines of good practice in dealing with such incidents. The actions of the police were, and continue to be, subject to critical attention which is focused on their alleged failure to recognise African-Caribbean and Asian claims that assaults on them often have a ‘racial’ motive. There are also claims of inadequate responses to requests for help and even of police action against complainants. The most dramatic evidence of this was the failure of the Metropolitan Police to collect sufficient evidence to prosecute successfully the murderers of a young black man, Stephen Lawrence. It is still hard to discern the impact of the Macpherson inquiry into these matters (Macpherson, 1999) on the police in particular or on the criminal justice system as a whole. Prescod focuses on racist attacks on local authority housing estates in Britain. Studies have shown that some of the most serious forms of racial harassment occur in urban areas that have significant concentrations of ethnic minority populations. Local authorities have been criticised for raising expectations of tough action in such cases when the normal response is to transfer the victim to new accommodation, thus rewarding the perpetrators. Many local authorities have cited racial harassment as a category of behaviour that can lead to eviction, but they are extremely reluctant to use this sanction, partly because it is seen as a sanction of last resort, and partly in case the courts fail to support the action. The sales of council houses, encouraged by the government, also mean that some people on local authority estates are now private owners of housing and have no contractual relationship with the local authority. Prescod argues that legal injunctions should be used more actively by local authorities, as these are a fairly successful strategy for combating racial harassment and abuse. She believes that local authorities over the 1990s began to use more creative strategies, both to help victims and to punish the perpetrators of racial harassment. More decisive support from the courts has been helpful in encouraging local authorities to take more decisive action. The position of the Jews in Germany, Bergmann argues, is unique. It cannot be divorced from their identification as the victims, par excellence, of the Holocaust. In post-Nazi Germany anti-semitism was banned from public life. The norm against anti-semitism was effective

12 Challenging Racism in Britain and Germany

for nearly forty years, and the most subtle forms of expressions of antisemitism were stigmatised. Anti-semitism is almost completely associated with National Socialism and far right-wing groups. Thus, right-wing extremist political groupings have also had little chance in post-Nazi Germany. This special weight of the past made itself felt in the initial responses to the violence toward Jewish memorials such as Sachsenhausen, in contrast to the rather distanced response to the violence towards asylum seekers in Hoyerswerda. While the public response to the fire-bombings and attacks on asylum-seekers was slow and ambivalent, the public response to the desecration of the Holocaust memorial at Sachsenhausen was immediate and clear. The Jews in Germany are a relatively small minority; they are citizens or have rights to citizenship, and are considered to be socially and legally integrated. Social surveys suggest that the elite and public opinion in Germany are quick to condemn anti-Jewish behaviour in contrast to the ambivalent responses first articulated in connection with Hoyerswerda and Rostock-Lichtenhagen, which to some extent even lent legitimacy to this violent behaviour by using these incidents as reasons to press for changes in the asylum law. Asylum-seekers are perceived as a problem and one that Germany shares with other European countries. However, because of the Holocaust, Jews are a special minority, their treatment is seen as the litmus test of modern German democracy, and there is a societal consensus against antisemitism. In contrast to the suppression of anti-semitism, Bohn and her colleagues argue that the stereotype of the gypsy as a pariah has been revived as a weapon in the battle to exclude refugees and immigrants, except those of German descent, from eastern Europe. They argue that both racist and romantic views of gypsies are based on the assumption that there are fundamental differences between gypsies as a group and the rest of society. Gypsies are constructed as undesirable, criminal and threatening in contrast to the law-abiding stable majority. The stereotypes of gypsies are greatly reinforced by the media. A content analysis by Bohn and her colleagues of twelve local newspapers over thirty-four years showed that in two-thirds of nearly 1000 press reports gypsies were portrayed as criminal. Secondly, criminality was described as an inherent trait of gypsies as a group, so all gypsies were assigned the faults of individual members of the group. Gypsies are defined as a cultural or biological group that is unassimilable because of inherent cultural characteristics such as travelling and delinquency. Anti-gypsy prejudice is thus perpetuated and reproduced as racism and neo-racism

Zig Layton-Henry and Czarina Wilpert 13

by the media in the same way as anti-semitism was reproduced and perpetuated before the Second World War. In contrast to Britain, racist violence in Germany has only recently occupied a prominent place on the political agenda and, of course, this is due to the widespread attacks on refugee hostels and murders of asylum-seekers in the early 1990s. Kühnel speculates that the momentum of a wave of violence like that in the early 1990s is dependent on the societal response, and especially that from politicians, to such extreme right-wing violence. Kühnel’s paper addresses the causes and circumstances of right-wing extremism and racist violence, particularly with regard to young men. Kühnel examines a wide range of survey data on attitudes to racist violence and right-wing extremism and does not find it very helpful in explaining right-wing attitudes or authoritarianism. The best conclusion, he argues, is that a combination of ideas associated with social deprivation combined with fear of unemployment and loss of social status collectively produce right-wing extremism. A further important dimension is the significance of a violent subculture among certain groups of young people such as skinheads and punks who enjoy violence. The response to violence against foreigners often seems to reward the perpetrators. Refugee hostels that are attacked are often closed down and their residents moved to other areas. Public and political condemnation is much less marked than in the case of attacks on Jews or Jewish property. The media response is to argue that the attacks on asylum-seekers are a populist response to a real problem and the solution is not to prosecute the perpetrators but to curtail the entry of ‘bogus’ asylum-seekers. The parallels with the responses to racist attacks in Britain are very clear. Kühnel argues that 70 per cent of these racist crimes are carried out by young men aged 16–20 years, and in nearly half the cases, by east German men. They were not unemployed but often skilled workers or apprentices. Clearly widespread dissatisfaction exists among most east Germans due to the huge gulf between the hopes of social and economic success in a united Germany and the limited chances of its rapid realisation. No doubt there are also collective feelings of discrimination among east German youth who feel west Germans are favoured in education and employment. This provides a fertile recruiting ground for extreme nationalist groups who provide a German identity reinforced with a hostility towards foreigners, who are seen as unjustly competing for German jobs. This legitimises violence against

14 Challenging Racism in Britain and Germany

foreigners. A reinforcing interaction thus occurs between the insecurity and frustration of young people who are not well integrated into adult society but are attracted to violent gangs, and vulnerable scapegoats who lack official and political protection. These continue to encourage racist violence which, if not condoned by politicians and the media, is considered understandable due to the high levels of immigration into Germany. This, however, does not explain racist violence in west Germany. The number of racist attacks, which were in decline following the heights reached in 1993, has been increasing again since 1997. This situation has created a broad alliance initiated in November 2000 between the SPD–Green coalition government and civil organisations throughout society to stop racist violence and to promote tolerance. The federal government has launched a six-year programme with a 25 million Deutschmark yearly budget to develop programmes to combat racism, xenophobia and discrimination, especially in the world of work. A peculiarity of Britain is that it has no written constitution where the rights of minority groups can be entrenched and protected. This means that the protection of minorities has to proceed through legislation. Munro argues that British anti-discrimination legislation, for visible ethnic minorities, was linked to immigration control. As the British government acted to control Commonwealth immigration in the 1960s it was felt that parallel legislation should be introduced to protect new Commonwealth immigrants from racist discrimination. The contradiction between discrimination at the borders and attempts to eliminate discrimination within the borders did not cause political anxiety: in fact politicians saw the policies as complementary. Immigration control was seen as necessary to integration and good race relations as it reduced the numbers of immigrants and reassured the general public that their jobs and way of life were not going to be threatened by a tidal wave of outsiders. The first Race Relations Act in 1965 was a modest piece of legislation passed by a Labour government anxious to obtain Conservative consent to the principles of anti-discrimination legislation. Discrimination on grounds of ethnic origin or ‘race’ was outlawed in public places and Conservative Party consent was obtained by dropping criminal sanctions and relying for enforcement on the civil law. The Act did create one criminal offence of inciting racial hatred. The second Race Relations Act in 1968 made it unlawful to discriminate on grounds of colour, race, ethnic or national origins in employment, housing and the provision of commercial and other

Zig Layton-Henry and Czarina Wilpert 15

services. The publication or display of discriminatory notices or advertisements was also banned. The Act provided for administrative rather than criminal enforcement through the Race Relations Board. However, the Board was very cautious in pursuing cases and its priority remained conciliation and education rather than enforcement. Munro argues that this strategy had its strengths, particularly in avoiding the creation of martyrs. Current British legislation is enacted in the Race Relations Act 1976 which follows previous legislation in creating a civil liability for wrongful discrimination enforceable at the instigation of the victim. It also created the Commission for Racial Equality which was jointly charged with promoting racial harmony and enforcing the law by ensuring the compliance of individuals or institutions through investigations and a system of enforcement orders. A novel feature of the Act was to outlaw indirect discrimination where unjustifiable procedures and practices, which apply to everyone, have the effect of putting people of a particular racial group at a disadvantage. In 2000 a Race Relations (Amendment) Act was passed extending the remit of the 1976 Act to the police and other public authorities. Munro emphasises that the law is not comprehensive. Religious discrimination is not covered by British legislation, although interestingly in Northern Ireland discrimination on grounds of religious belief or political opinion is outlawed. In Northern Ireland there is a Standing Advisory Commission on Human Rights which advises the Secretary of State on the adequacy of the law and government action against these forms of discrimination. There is also a Fair Employment Commission which has extensive powers of investigation, monitoring and enforcement which Munro argues has a greater capacity to support or require affirmative action than is found anywhere else in the British legislation. The criminal legislation against incitement to racial hatred is now part of the law on public order. It has been invoked rarely but sentences of imprisonment have often followed such prosecutions and convictions. This legislation has certainly limited the spread of more virulent and racist propaganda. Groups such as the Board of Deputies of British Jews have been active in reporting cases of incitement to the Attorney General. In general, Munro concludes that the law in Britain has played a significant role in reducing overt discrimination even though this continues to exist at substantial levels. He argues that the law works best when it facilitates actions which people want to take and which

16 Challenging Racism in Britain and Germany

are supported by a broad consensus. He is therefore cautious about encouraging the government to commit itself to affirmative action programmes and recommends that anti-discrimination legislation should be redesigned to outlaw all of the main grounds of discrimination such as race, gender, age, sexual orientation, disability and religion. This more general legislation could be framed as human rights legislation and be enforced by a human rights commission. It would be much less controversial than legislation framed to protect specific minority groups because while rights for specific disadvantaged groups might be unpopular and controversial and so politically difficult to defend, broad legislation to protect human rights would find more widespread support. MacEwen assesses the strengths and weaknesses of the British system and considers that structural changes are needed to effect substantial improvements. He argues that the English Common Law tradition places too much emphasis on individual freedom and individual action for the redress of grievances. There is no opportunity to initiate class or group actions on behalf of a category of persons disadvantaged by systematic discrimination. This emphasis on individual redress, argues MacEwen, has significant drawbacks. It too often results in outof-court settlements to the aggrieved party by which the person discriminated against is bought off and the case is hushed up. The discriminating person or company thus escapes both damaging publicity and the need to reform their procedures and practices. Worst of all, general precedents which might reduce widespread and systematic discrimination are not established. MacEwen’s three major remedies are similar to those of Munro. He favours the establishment of a Human Rights Commission to deal with arbitrary discrimination of all kinds. He also advocates the incorporation in domestic law of all international obligations such as protocols and conventions. Finally, he endorses the need to give the Commission for Racial Equality or a future Human Rights Agency greater strategic powers to promote positive action programmes by those in breach of the Act; the power to require the submission of evidence to show the implementation of such positive action programmes by large employers in the public and private sectors; to permit group action and remedies in the courts; the power to involve non-judicial negotiated settlements ratified by the courts and enforceable; and finally, the power to represent the public interest in court proceedings. If all these recommendations were implemented, real progress might be made against the huge levels of discrimination in the public and private sectors; without them, the

Zig Layton-Henry and Czarina Wilpert 17

access of visible ethnic minorities to jobs, accommodation and equal treatment as citizens will continue to be inferior to that of their white neighbours and they will, in effect, continue to be excluded from full and equal citizenship. Strategies to combat discrimination thus need to include an awareness of the impact of class policies such as the attack on the welfare state, the reduction of trade union power, access to educational opportunities and the need for an urban policy which encourages modern, innovative companies to locate in inner-city urban areas, thus giving ethnic minorities a real chance to participate in economic growth. The existence of substantial and persistent levels of discrimination in the British labour market has been well known since Daniel’s groundbreaking study in the early 1960s (Daniel, 1968). The findings of his research have been confirmed by subsequent studies (Smith, 1977; Brown, 1984; Modood, 1997). The most recent research shows a highly complex situation with some groups such as Chinese and Indians doing relatively well in employment, others such as Pakistanis and Bangladeshis doing poorly, and Caribbeans occupying an intermediate position. There are also considerable gender variations (Modood, 1997). Research findings confirming discrimination contributed much to the strengthening of the laws against discrimination to the extent that the Race Relations Act 1976 outlawed indirect discrimination2 as well as direct discriminatory actions. This legislation was reinforced by a semi-statutory Code of Practice in Employment, drawn up by the Commission for Racial Equality, which was approved by Parliament. This came into effect in 1984 and can be used in cases of discrimination brought before industrial tribunals. The effectiveness of the legislation and the Code of Practice have been matters of considerable debate. Coussey finds that large employers in Britain have, on the surface at least, been greatly influenced. They have generally acted to comply with the law. Most have introduced equal opportunity policies and acted to monitor their effectiveness. Overt discrimination by large companies against members of ethnic minorities in such areas as recruitment and promotion has largely disappeared. Large companies are aware of the law and act to comply with it to avoid bad publicity and possible action against them before industrial tribunals. They are less effective in suppressing overt racism of an informal kind by employees and a significant number of such cases are heard by industrial tribunals. Large public employers are often most responsive to action from the Commission for Racial Equality. Recently, for example,

18 Challenging Racism in Britain and Germany

action by the Commission and recruitment difficulties in a tight labour market have caused the army to make special efforts to recruit and retain members of the ethnic minorities. In the private sector, Coussey argues that managers are very aware of the multiethnic nature of their customer base, for example in Greater London, and therefore of the need to diversify their labour force. Managers of large companies are also aware of the impact of globalisation and the advantage of a diversified workforce in an increasingly international marketplace. However, many traditional company practices such as word-of-mouth recruitment and the re-employment of known subcontractors and casual workers discriminate against ethnic minority people and businesses. Coussey finds that considerable pressure is needed to make anti-discrimination legislation effective. In the United Kingdom she finds the only strong evidence of success to be in Northern Ireland, where considerable pressure has been put on companies to introduce fair employment practices and to end discrimination against Catholics, and a combination of legislation and sustained government pressure has had strongly positive results. This shows only too clearly that legislation alone is not enough; it needs to be reinforced by strong government action, by market conditions, and by the courts or industrial tribunals. Discrimination tends to be cumulative, and antidiscriminatory measures also need to be cumulative if they are to be effective. Rainer Nickel argues that Germany has not developed the legal and institutional instruments to combat discrimination based on racist or ethnic grounds as is the case in many other states. He argues that one major problem is the marked distinction between discrimination by private individuals and discrimination by the state. The Basic Law in the Federal Republic of Germany forbids all forms of discrimination by the state on the grounds of national origin, ethnicity or ‘race’, but not on the grounds of foreign citizenship.3 The situation in the private sphere is much more ambiguous and as a result of this ambiguity individuals who feel they have been discriminated against have little chance of legal redress. Moreover, even if they are successful they will receive only small sums in compensation. This situation could be about to be transformed, argues Nickel, due to the recent directive from the European Union’s Council of Ministers. This directive implements the principle of equal treatment between persons irrespective of ‘racial’ or ethnic origins (Council Directive 2000/43/EC, 29 June 2000). Nickel points out that this directive contains a blueprint for every member state, including Germany,

Zig Layton-Henry and Czarina Wilpert 19

to provide comprehensive protection against ‘racial’ discrimination in both the public and the private spheres. It accordingly provides detailed specifications for achieving an effective judicial process promoting equal treatment and also that it requires member states to introduce supplementary measures such as enforcement agencies to reinforce the legislation. These agencies could be similar in function to the British Commission for Racial Equality and Equal Opportunities Commission. The member states have to notify the European Commission on the action they have taken by 19 July 2003. Nickel therefore feels that the directive opens up the possibility in Germany of effective and wide-reaching anti-discrimination measures. This is because the directive insists that the right to equality before the law and protection against discrimination is a universal human right that must be respected in all member states. It should apply to all persons in both the public and the private sectors, especially in employment, training, health and education. The directive even outlaws indirect discrimination where an apparently neutral provision, criterion or practice would put persons of specific ‘racial’ or ethnic origin at a particular disadvantage compared with other persons, unless the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving this aim are appropriate and necessary. Nickel views the directive as potentially having a wide scope. It even proposes that the burden of proof in discrimination cases should be made easier. It emphasises the need for effective sanctions to give people who are discriminated against the confidence that if they take the case to court they will receive adequate redress. Nickel perceives the directives of the European Council of Ministers in implementing Article 13 of the Treaty of the European Union as acting as a catalyst for serious and significant anti-discrimination legislation in Germany. This legislation is in many ways a logical follow-up to the liberalisation of the naturalisation laws that took place in Germany in 2000. If Germany is to follow other European countries and accept that it has become a multiethnic society, then it needs a legislative framework to ensure that its non-European German citizens (and permanent residents) receive the equal treatment to which they are entitled. One might expect that the German body politic would be particularly sensitive to accusations of racism and racial discrimination and so would be very willing to pass legislation to outlaw racist and ethnic discrimination of any form. However, as Wilpert argues in her conclud-

20 Challenging Racism in Britain and Germany

ing chapter, there are a number of difficulties in achieving this in the German case. Firstly, and most important, is the fact that many of victims of discrimination, namely immigrants and asylum-seekers, do not have citizenship. The term ‘minority’ in Germany has traditionally been applied to long-established territorial ethnic minorities such as the Danes in Schleswig-Holstein. It is perfectly legal in international law for sovereign states to discriminate in favour of their own citizens and against non-citizens. In Germany there are a whole series of laws which discriminate, quite legally, on the basis of citizenship allocating rights and entitlements to German citizens and not to non-citizens. In practice this indicates that foreigners in Germany, even though they are permanent residents, are not regarded as part of German society and the German community. Wilpert argues that there is thus no legislation in Germany that has the specific objective of protecting minorities of immigrant origins against discrimination. Since the Basic Law forbids all forms of racial discrimination, most Germans believe that ethnic minorities are protected. The appropriate legislation is missing to which black Germans and ethnic groups of non-German origin as well as resident foreigners may take recourse when they encounter racism or discrimination. A serious practical problem is that there are major barriers to obtaining legal redress in the courts if you feel you have been discriminated against. The aggrieved person has to prove that s/he has been discriminated against. This is usually very difficult to prove conclusively so minorities like citizens from Turkey resident for generations have often articulated that they are subject to discrimination but have little recourse to legal procedures to defend themselves. Wilpert supports the position that specific measures need to be taken to allow public agencies to take action against all forms of discrimination whether based on racist beliefs or behaviour, or other acts which discriminate against individuals because of the colour of their skin, ethnic origin, culture or religion. Accordingly it is necessary that both minorities who have citizenship and foreigners need to be protected from discrimination in civil society, from both private persons and institutions. It needs to be made much easier for minorities who are discriminated against to obtain legal redress and compensation. The model that such legislation could follow is the legislation protecting women from discrimination in the labour market. Moreover, it will be necessary, as is the case in Britain, to establish a special public agency in order to enforce such new legislation and to train lawyers specialising in this new field. It will also be necessary to introduce a monitoring

Zig Layton-Henry and Czarina Wilpert 21

system to ensure compliance with the new legislation. Such procedures will be of course highly controversial given the prolonged denial of rights to citizenship to foreign residents and the refusal of Germany to recognise itself as an immigration country with the necessary policies towards immigrants. The first step has been taken with the decision on ius soli for children of legal immigrants born in the country. The second step would be to set up a comprehensive system to protect resident foreigners as well as minorities with citizenship from all forms of discrimination. This could be a crucial initiative that would also recognise that a numerous and visible proportion of immigrants from Turkey have become a permanent part of German society, who deserve equality of treatment and respect. Notes 1 See Oberndörfer’s chapter in this book. 2 Indirect discrimination was defined as applying an unjustifiable requirement or condition which appeared to apply equally to people of different racial groups but which in practice was discriminatory, for example refusing to employ people from particular schools or districts in a city. 3 Unfortunately permanent resident foreigners who do not hold German or another citizenship of the European Union may continue in some cases to be discriminated against on grounds of foreign citizenship.

References Banton, M. (1985), Promoting Racial Harmony, Cambridge: Cambridge University Press. Bethnal Green and Stepney Trades Council (1978), Blood on the Streets: a Report on Racial Attacks in East London. Brown, C. (1984), Black and White Britain, London: Heinemann. Daniel, W. (1968), Racial Discrimination in England, Harmondsworth: Penguin. European Council Directive 2000/43/EC, 29 June 2000, The Implementation of the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin. Faist, T. (1995), Social Citizenship for Whom? Young Turks in Germany and Mexican Americans in the United States, Aldershot: Avebury. Macpherson, Sir William (1999), The Stephen Lawrence Inquiry: Cmnd 4262-1, London: HMSO. Marshall, T. H. (1950), Citizenship and Social Class and Other Essays, Cambridge: Cambridge University Press. Miles, R. and Thränhardt, D. (eds.) (1995), Migration and European Integration: the Dynamics of Inclusion and Exclusion, London: Pinter Publishers. Modood, T. (1997), Ethnic Minorities in Britain, London: Policy Studies Institute. Norton-Taylor, R. (ed.) (1999), The Colour of Justice: Based on the Transcripts of the Stephen Lawrence Inquiry, London: Oberon Books. Smith, D. J (1977), Racial Disadvantage in Britain, Harmondsworth: Penguin.

22 Challenging Racism in Britain and Germany Vertovec, S. (1996), ‘Discrimination, Diversity and Democracy in the New Contexts of Change’, University of Warwick: Centre for Research in Ethnic Relations (unpublished paper). Wilpert, C. (1993), ‘The Ideological and Institutional Foundations of Racism in the Federal Republic of Germany’, in J. Solomos, and J. Wrench, (eds), Racism and Migration in Europe in the 1990s, London: Berg. Witte, R. (1996), Racist Violence and the State: a Comparative Analysis of Britain, France and the Netherlands, London: Longmans.

Part I Citizenship and Nationality

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1 Models of Citizenship and Rules of Naturalisation1 Rainer Bauböck

Granting citizenship is traditionally viewed as a key element of national sovereignty. Each state is free to define the criteria according to which new members are accepted. The different points of departure in the building of a nation and the historical traditions of colonial powers as sending and receiving countries have led to a wide range of rules for transferring and acquiring citizenship. Within democracies, citizenship is not only (or primarily) an expression of national identity; it also means access to a complex bundle of rights. Equal distribution of these rights is one of the basic conditions for democratic legitimation of political authority. Inclusiveness, too, is a norm postulated in a liberal democracy. All people subject to the laws of the land must have basic rights as citizens and must be represented in the legislative process. Access to citizenship must be kept open if the resident population and the number of citizens are no longer equal because of, say, continuing immigration. In liberal democracies this implies normative constraints on national legislation regulating naturalisation. Unlike the rules for automatic citizenship at birth (ius soli and ius sanguinis), all rules for naturalisation in democratic states are based on the concept of voluntary affiliation. Citizenship may not be imposed. However, voluntary membership can be interpreted in quite different ways. I first discuss four ideal-type models to illustrate the range of current interpretation. Nevertheless, my aim is to offer a normative study rather than a descriptive one. These models serve as contrasts. They are intended to show that democratic states are associations of a specific kind and that liberal principles of membership cannot be adequately described by means of analogy with other kinds of communities or associations. These models should also reflect the inadequacies of present membership criteria and of their 25

26 Challenging Racism in Britain and Germany

normative underpinning. Since the Second World War the right to nominal citizenship2 and protection from statelessness and involuntary deprivation of nationality have been raised to the level of human rights. That shift constitutes a normative restriction on the scope of national sovereignty, irrespective of the type of political regime. The scope of the rules governing naturalisation of normal immigrants who possess other citizenship is not similarly limited by human rights, but is certainly limited by a liberal conception of citizenship rights. Criticism of the four models is also an attempt to defend stronger normative constraints for admission rules in democratic states than the prevailing ones. The four analogies of citizenship that have been examined are the club, the church, the city, and the company. The community character of national concepts of citizenship could be illustrated by other organisational models, such as the family, the class at school, or the community of inmates in a prison or psychiatric hospital. Unlike the examples discussed in the following pages, however, these communities are not based on voluntary membership and are therefore less suitable as analogies for the analysis of rules for naturalisation.3 After presenting the four models, I outline the main elements of an alternative model: liberal citizenship. I show the implications of each of the five models by applying five test criteria: (a) openness for access, (b) toleration of multiple membership, (c) voluntary exit, (d) involuntary expulsion, and (e) importance of collective goals. The results of these considerations are summarised in Table 1.1.

Table 1.1

Five test criteria for five models of citizenship in democratic states Club

Church

City

Company

Liberal democracy

Discretion

Confession

Residence

Payment

Conditional option

Multiple Non– No membership competitive

No

Yes

Conditional option

Voluntary exit

Yes

Restrictive

Yes

Yes

Conditional option

Expulsion

Yes

Yes

No

No

No

Collective goals

Yes

Yes

No

No

Partial

Rules for admission

Rainer Bauböck 27

The club model (a) Admission to a club first requires an application for membership. Approva1 of the application is then deliberated at a meeting of the members or of the board acting on their behalf. Acceptance is reciprocal, but successive. The applicant expresses his or her wish first, then the club makes its decision. The applicant does not normally have recourse to appeal against a refusal. Only if the person were a member would he or she be entitled to invoke the statutes of the club, call upon the members to overturn a board decision, or seek a ruling by a supervisory organ. (This arrangement distinguishes the admission procedure from that of expulsion.) Consensus is therefore asymmetrical and reflects an imbalance, or differential, in power relations. This differential marks a stricter demarcation between the club and its social environment than is the case in the other models. The traditional model of naturalisation corresponds to that of the club. First, the government defines the group of those people basically eligible for naturalisation (as many clubs define their eligibility criteria in their statutes). The authorities examine whether the legal conditions for naturalisation have been satisfied and have the final say in the decision. Their discretionary latitude thereby has two dimensions. One consists of vague requirements (such as lasting allegiance to the German nation and integration into German community). The other is the possibility of rejecting an application or barring an appeal even though the necessary criteria have been met. (b) Clear differentiation between members and non-members and the power of members to control new admissions are constituent organisational features of the club. By contrast, competition with other clubs is not a characteristic feature. A football club is defined on that basis, but not a sauna club. Only in clubs that compete fiercely with each other is multiple membership prohibited or considered problematic. Citizenship oriented to the club model can certainly tolerate multinationality. Multinationality would be precluded only between enemy or belligerent nations. From the ‘realist’ perspective of international politics, however, all sovereign countries find themselves, in principle, in a natural state of potential war with each other. This Machiavellian and Hobbesian stance contrasts with another republican interpretation of citizenship that has endured from Aristotle to Hannah Arendt: the view that exclusivity is primarily directed inward, as a necessary limitation of every self-regulating political community. In their conception, multiple nationality would be less of a problem than would be a lack of

28 Challenging Racism in Britain and Germany

clear distinction between nationals and aliens (or, earlier, between citizens and women, slaves, or the unpropertied). Basic rights of citizenship may not be extended to foreigners. (c) Clubs generally permit unrestricted voluntary exit and usually require no justification for such exit. The right to voluntary expatriation must be guaranteed in every state that is based on this model. In practice, however, anyone exercising this right must also emigrate and, in recent times, must possess or acquire other citizenship (to avoid statelessness). The option of voluntary internal renunciation of citizenship would destroy the territorial monopoly of the legal system’s jurisdiction and jeopardise the universality of citizenship rights. (d) Clubs have the right to expel members. There are generally statutory restrictions, however. Expulsion is usually possible only if the image of the club is brought into major disrepute or if its objectives are seriously violated. Expelled members may appeal to the general meeting of the members. The board must put its decision to a vote. If states were clubs, they could expatriate citizens under similar conditions. The practice of ostracism in the city-state of Athens in ancient Greece was based on this notion. In modern democracies, however, deprivation of internal citizenship rights (which are not the same as the divestment of citizenship) occurs only in extreme cases. Banishment has been abolished. Some states do expatriate citizens who join a foreign army, become naturalised citizens of a foreign country, or settle permanently abroad, but apart from these cases a person cannot be deprived of citizenship in a liberal democracy. (e) Clubs pursue a specific objective. It is, however, usually a subordinate element in the catalogue of objectives and values held by the members. A club’s objective is collective in that it represents a common good achievable only through co-operation between its members. The specific nature of club goods (as opposed to private or public goods) implies that each member considers and promotes the interests of other members when pursuing his or her own interest in such goods.4 State objectives are considerably more comprehensive and hence less specific than club objectives. In some respects, though, they can certainly be identified. Social-contract theories postulate the prevention of civil war, the protection of natural rights, or the facilitation of collective self-determination as the state objective. Nationalist doctrines pursue the acquisition and safeguarding of territory as living space for a people, expansive authoritarian domination, the conquest and subjugation of other societies, and so forth.

Rainer Bauböck 29

The club analogy can also be interpreted to mean that the respective state objectives need not pervade all areas of citizens’ lives but must feature in each individual’s hierarchy of values. Citizens are free to go about their affairs and their private lives, but, as voluntary members, they must at the very least accept and be prepared to pay their membership dues in the form of taxes. The function of states is to produce and administer public goods (internal security for example). Some of these are club goods (such as citizens’ rights of political participation) because they are tied to formal membership criteria. In the club model of citizenship all goods produced by the nation-state are ultimately club goods. Non-members, that is, aliens, can in principle be barred from enjoying any of these goods. Laws discriminating against foreigners are democratically legitimated – only citizens enjoy equal rights. Positive externalities due to the public nature of some goods (such as internal security, developed infrastructure, welfare legislation) can benefit aliens as well. But the control that a nation-state exercises over immigrant access to its territory and over immigrant residence within that territory makes it possible to limit access to such public goods too.

The church model (a) Proselytic religious communities are open to everyone who professes their faith. Those from other denominations may convert and thereby become entitled to join the community. In ardent republicanism the principles of proselytic religions are transferred to the state. The French Revolution created a kind of republican church, and the constitution granted civil rights to everyone (including foreigners) who professed the ideals for which the Revolution stood. In the Cold War era the liberal western states treated political refugees from communist regimes similarly, taking them in, granting them refugee status without individual examination of their reasons for seeking asylum, and speeding their access to citizenship. These cases are the exception. Access to citizenship is not open to all those who profess the constitutional principles of a state. Conversely, those seeking naturalisation are seldom required to prove any thorough conversion. In many states, however, those being granted naturalisation on other grounds are required to pledge their allegiance as a ritualised form of such conversion. (b) Multiple membership is possible only in syncretic religions. They used to be the civic religions of great empires. The linkage between

30 Challenging Racism in Britain and Germany

monotheism, written religion and proselytism put an end to the practice. The worship of other gods is the surest sign of paganism. The republican conception of nationality emphasises the citizen’s obligations of loyalty. Multiple citizenship is an indicator of weak loyalty and an acute danger in an environment of potentially hostile states. Feudal states still permitted multiple membership as long as the sovereigns were able to agree. Even the status of subjects as it later homogenised under absolutism still left room in this respect. Today, the clearest reflection of this scope is found in Great Britain, where British subjects and Commonwealth citizens still constitute partially overlapping categories. Such ambiguities must be completely eradicated only if republican or nationalist ideas permeate the law on citizenship. It is possible to serve two masters, but no one can simultaneously belong to two wholly sovereign collectives whose citizens govern themselves in all matters. (c) It is not always possible to renounce church membership voluntarily. That step can be taken without sanctions only upon the separation of church and state, that is, when churches have become institutions within a secularised civil society. No republican version of citizenship prohibits voluntary renunciation of citizenship. Since time immemorial the exit option in political theory has been considered an indicator of tacit consent. In Plato’s Crito, the personified Athenian laws, which left little scope for ‘the liberties of the moderns’ (Benjamin Constant), remind Socrates that he is obliged to accept an unjust death sentence because he had had, but had not exercised, the right to emigrate and renounce his citizenship. Refusal to permit a citizen’s voluntary expatriation after that person has left the country would, accordingly, be a characteristic of nationalist and totalitarian regimes; but it is still a relatively widespread practice, even among member states of the European Union (EU), for example Greece. (d) In many religions, apostates may be expelled even against their will. If the denomination is dominated by priesthood, this kind of decision need not be legitimated by the other members of the faith either. Involuntary expatriation is even more characteristic of totalitarian states today than is the refusal to accept voluntary expatriation. Ostracism in Athens was a republican practice based on the plebiscite; expulsion was not decreed by the authorities but decided by the people themselves by secret ballot. By contrast, in a liberal democracy involuntary deprivation of citizenship is a violation of the basic right to state protection. This right can be forfeited only by acquisition of

Rainer Bauböck 31

protective status as a subject of another sovereign, not as a result of opinions or acts against the state, not even a serious crime. (e) In messianic religious communities the ‘club objective’ dominates all other goals of the members. Commitment and loyalty are required in all areas of life. Social solidarity among the members is one of the main commandments. In addition, however, most religions have developed a universalist moral code that applies to outsiders and non-believers as well. The republican view of citizenship, as exemplified by Rousseau, does leave a sphere of intimacy and oikos intact, but it establishes a hierarchy of virtues, of which the political ones rank highest. Moreover, it prevents the development of a private yet also public sphere of civil society that is different from the state and outside its control. The interests of the individual are subordinated to those of the community. The republic is constantly exposed to two fundamental dangers: the external threat from other states and internal decay due to the preoccupation of citizens with their private interests. From this perspective, opting for a new nationality is a far-reaching decision. It is a kind of adult baptism, for its time horizon is the entire life of a person. It makes for a re-evaluation and devaluation of the person’s past as well as for an absolute bond for the future. Naturalisation does not primarily mean more rights but obligations, especially the duty to defend the state, that is, to die or be killed for the sake of its existence. The position of aliens is more ambiguous in the republican model than in the club model. The boundary between them and the citizens is also one between rival sovereigns and, often, different world-views. The alien who has grown up under a different regime can be the carrier of the virus of despotism, even if he or she arrives as a refugee. The alien must first be quarantined and re-educated before it is possible to become a member. On the other hand, the alien should be acquired for the republican community. In the club model the distinction between aliens and citizens marks a self-evident external boundary, whereas in republican thinking it is a necessary distinction that in principle precludes neither the extension of substantial rights nor magnanimous acceptance. The priority of ensuring the well-being of one’s own community does not necessarily mean exclusivity.

The city model5 (a) The liberal nation-state creates a space for free internal migration. Cities change from closed to open settlements. Natives, citizens from

32 Challenging Racism in Britain and Germany

other parts of the country, and aliens legally residing in the state have the same right to enter and establish residence there. When accommodation and jobs are scarce in relation to the attraction of moving to the city, the establishment of residency becomes subject to a selection process. However, this selection takes place through markets, not state control. ‘Membership’ in a local community as a political unit is not acquired through mere presence but through residence. It follows more or less automatically from the consolidation of social relations over time. Unlike the case with the club or church, the acquisition of membership therefore does not require a conscious decision at a specific point in time. Such a decision may be taken when a new place of permanent residence is chosen. Membership is a later result and side-effect of this decision, but usually not its determining purpose. The liberal norm of the inclusiveness of citizenship rights serves as a basis of a domicile model of citizenship. When nominal citizenship can be acquired according to the duration of one’s residence, it approaches the model represented by modem citizenship of a local community. In all naturalisation procedures the duration of lawful residence is the most important criterion for admission, but nominal citizenship is not automatically acquired anywhere as a result of the mere duration of residence. (Under French law until recently a person automatically acquired citizenship upon coming of age after having lived in the country for five years, provided he or she had been born in the country. This law is closer to a delayed ius soli than to a naturalisation procedure. It has now been changed into a right to request naturalisation.) The duration of residence does not usually confer any right to be naturalised (or only after a very long period of residence). It is only a minimum requirement for applying additional criteria and making discretionary decisions. In democratic receiving countries, however, a kind of ‘denizenship’ is emerging that extends key rights of citizenship, especially the right to permanent residence, to residents regardless of their nominal citizenship. The transition from alien to denizen generally follows automatically or results from a legal claim. The main prerequisite is the duration of residence and, in many cases, regular income, adequate living space, or continuous employment. (b) It is not generally possible to be simultaneously a citizen of more than one local community if affiliation is a function of the location and duration of residence. Few people have their residence in more than one city, and even then only one residence is recognised as the principal domicile. They are not considered fully integrated citizens at their secondary residences and are often ineligible to vote in local elections.

Rainer Bauböck 33

The domicile model of citizenship is not a sound argument for permitting dual nationality. It may be that people have ties to several states, but they do not reside in several simultaneously. There is only one centre of gravity in one’s life, and that is the only place where citizenship can be claimed. A permanent change of that centre of gravity would, however, have to entail a change of nominal citizenship. The principle of dormant dual citizenship is a compromise between the domicile principle and the toleration of multiple nationality. (c) Unlike nation-states, cities are in principle open to immigration. They are all the more open to emigration as well. The voluntary exit from membership in a local community is a simple consequence of giving up one’s residence. It is possible at any time and without justification. As far as exit rules are concerned, the model of urban citizenship corresponds to membership of liberal states. (d) That is only partly true, however, for involuntary expulsion. In the modern nation-state banishment from a city area is a sanction not only difficult to justify but also ineffective unless combined with house arrest. By contrast, de facto forfeiture or formal deprivation of citizenship as a result of moving away seems well-founded. As mentioned above, the practice in some states is to apply the domicile principle not only to the acquisition of nominal citizenship but to its loss as well. Unlike the case with urban citizenship, however, simply giving up residence does not seem sufficient ground for losing nominal citizenship. First, another normal citizenship must be acquired. Second, a number of years should be allowed before expatriation takes place (with general toleration of dual nationality). And third, even under those circumstances, expatriation should not have to be automatic. Instead, declarations of agreement should be required, or, at the very least, there should be opportunities to appeal. (e) With states, it may be possible to make out a collective purpose that stands out from the objectives of their individual members and seems to justify their existence; with cities, this notion is nonsense. What would be the purpose of Berlin’s existence? Modern cities constitute closely knit networks of social interaction and co-operation, but as collectives they have no objectives other than those resulting from the individual inhabitants’ needs in life. To be sure, cities are also political communities, and some are provinces of a federal nation-state. But their subordination to a sovereign national government limits the plausibility that they represent a specific, higher order collective objective beyond the responsibilities of local administration. Administrative autonomy becomes an expression of collective identity when the

34 Challenging Racism in Britain and Germany

regional sub-unit considers itself an ethnic or national one. On the other hand, in many cities the sense of a common history and a specific culture is more palpable and realistic than in the mists and fog of nationalist mythologies. Loss of political sovereignty and the openness of the city in modern nation-states do not necessarily bring about a collective ‘loss of identity.’ If citizenship were to approximate this model, the collective identification with the nation would eventually be replaced by a depoliticised link to ‘homeland’. Nationality, from this point of view, is what it has long been to the vast majority of native citizens anyway: something taken for granted, not based on free choice, and appreciated for its value only when it is lost and only outside the territorial boundaries within which it applies. Liberal theories of the social contract maintain that political membership must be based on consensus. However, it is only in the marginal area of naturalisation that membership is, in fact, acquired through consensus. Why should this theory not be abandoned for this marginal area as well, making naturalisation simply an automatic result of establishing residence? As attractive as such a demystification of citizenship may seem, it goes against one’s intuitive sense that the naturalisation of adult immigrants should depend on their personal decision.

The company model (a) One joins a joint-stock company by buying shares. Other selection criteria among applicants for admission are superfluous (in contrast to the situation with the club, where payment of membership dues does not in itself constitute sufficient grounds for admission). The current company shareholders have the right to block further share issues and thereby block admission of additional members. The sole motive for the individual to join and for the shareholders to admit new members is to optimise individual utility, which is defined as expectation of profit. Citizenship cannot be purchased in the same sense. True, there are often exorbitant fees that can put off immigrants willing to naturalise. But the status of a member of a company does not depend on a single admission price but on the number of shares that member purchases. By contrast, each citizen has one vote, as in a club, regardless of how and at which price he or she acquired citizenship. In politics, the analogous corporate model would be elections with free purchase and sale of voting rights. That arrangement is justifiably considered irreconcilable with democracy. It would indeed be unacceptable if registering to

Rainer Bauböck 35

vote or exercising the right to vote were coupled with high fees, even if their express purpose is to cover administrative costs. But that is precisely what commonly happens when nominal citizenship is granted. The analogy between the company and citizenship becomes more plausible if costs and benefits of the latter are not conceived of only in monetary terms. One could, in fact, outline a realistic model of naturalisation in which calculation of utilities is made the dominant criterion for both admission and acceptance. From this standpoint, the applicant weighs the advantages and disadvantages of naturalisation against each other and weighs the result with the likelihood of acceptance and the price of admission. The rights and responsibilities of citizens are compared with the rights and responsibilities that resident aliens possess in the receiving country and those that emigrants have in relation to their respective countries of origin. If this model is applied to a world of open borders – or, more realistically, a group of migrants to whom the borders of many states are open (citizens of EU countries for example) – then the available options to be assessed can even include choice of the receiving country. The attractiveness of citizenship is then compared not just to the status of being an alien in the respective country or to the return to the country of origin but also to the possibility of naturalisation in third states that are also accessible. Immigrants are not the only ones to behave like purchasers of shares. In certain respects receiving countries, too, practise a policy pursued by companies. They try to maximise the benefit to the receiving society by attaching strings to the places available and giving priority to immigrants with investment capital or human capital. With naturalisation policy, however, the club model tends to dominate. The general criteria tend to reflect the idea of social affiliation (by virtue of residence, language, culture, integrity, and so forth) more than the requirement of net contribution. Nonetheless, the preferred naturalisation of wealthy immigrants in particular or famous athletes or artists show that calculations of benefit are used to justify exceptions to the rule in this sphere as well. (b) Ownership of shares in more than one company is not only allowed but regarded as a rational way to diversify risk. Sentimental ties to a single business encourage uneconomic behaviour. Share ownership in a network of companies competing fiercely with each other may lead to discretionary conflicts for the individual shareholder. Conversely, however, it can facilitate a solution to the conflict (for example, by means of integration or co-ordinated specialisation in separate niches of the market).

36 Challenging Racism in Britain and Germany

The argument for toleration of multiple citizenship is thus even stronger with the company analogy than with the club model. The conflicts of loyalty ensuing from multiple citizenship should be understood primarily as problems of individuals, not of states. From the state’s point of view, problems of applying dissimilar codes of law do arise, but the existence of persons holding multiple citizenship also creates social ties between states, ties that can help resolve such conflicts by means of international agreements and, under certain circumstances, even reciprocal harmonisation of legal codes. Just as unrestricted international share-trading cannot be tolerated between two states that are at war with each other, neither can multiple citizenship in that situation. This is no reason to prohibit it in peacetime, though. (c) Any shareholder can sell part or all of their shares at any time and thereby quit the company. The model of the state as a company establishes a fundamental right to voluntary exit. In radical terms, this model, and only this model, would have to permit voluntary internal expatriation. It could be objected that whoever remains in the country also enjoys the public goods of citizenship and therefore is not allowed to escape the obligations attached to citizenship. Except for military service, however, these obligations no longer have much, if any, connection with citizenship anyhow. The main counter-argument is that expatriates living inside the country remain members of the political community in important ways and that their renunciation of nominal citizenship would split society into formally unequal citizens. This objection is not cogent for the company model. Unequal membership is the rule with companies of shareholders. Whoever is prepared to forgo the advantages of full membership, or is unable to afford it, is simply a half-member or quarter-member. If the state is interested in maximising the number of fully enfranchised citizens, then it must create incentive systems that make that status attractive. The state does not have the right to prevent a free decision in favour of another legal status. At the extreme, one must therefore also be allowed to divest oneself of citizenship rights (by voluntarily selling oneself into slavery, for example). (d) Companies cannot expel members as easily as clubs and churches can. Expulsion means de facto expropriation. In certain depository trust companies a member who has clearly acted in breach of company interests can be expelled if a majority of shareholders decide to pay out the member’s share, thereby depriving the person of discretionary participation but not dispossessing him or her without compensation.

Rainer Bauböck 37

If states were companies, involuntary loss of citizenship would be conceivable only upon serious violation of the rules. But from this standpoint, morally non-culpable offences, too, could justify expulsion if collective interests of other citizens had been adversely affected. Just as utilitarian morals generally provide only a very shaky foundation for basic rights, the basic right to citizenship would be jeopardised by a concept of membership based on calculations of costs and benefits. (e) What distinguishes a company from clubs and churches is the purely instrumental character of interaction between members for the purpose of optimising individual utility. There is no genuine collective purpose of association beyond the individual making a profit and an absence of broad scope for informal, non-instrumental social encounters between anonymous members. The members of joint-stock companies interact primarily as shareholders. They do not constitute a circle of friends with common preferences, a congregation of followers professing a particular faith, or a sphere of urbane public 1ife in which citizens can communicate with one another as strangers on just about whatever they choose. Public life in civil society, however, is necessary so that ideas about a polity’s common and supra-individual purposes can be discussed at all. As temporary utilitarian associations of members seeking to maximise their own utility, states would be unable either to develop democratic public life or to achieve the requisite stability for establishing and maintaining civil peace. As already discussed, states based on the company model would not be able to guarantee equality of citizen rights, either. If the choice between various forms of membership (the emigrant, the resident alien, the naturalised citizen) has become strictly a matter of calculating individual benefit, then it would also be possible to take the rights and responsibilities linked to that membership and differentiate them into bundles of shares that could be offered according to demand and acquired according to individual resources and preferences.

A liberal democratic model for receiving countries Basic norms for this type of model would be: 1 Equality among citizens as members of the state, a condition that implies equal citizen rights. 2 Inclusive membership, meaning that all permanent members of the society organised in the state are included in the allocation of citizen rights.

38 Challenging Racism in Britain and Germany

3 Substantive development of these citizen rights as civil liberties, rights to participate in political processes, and rights to social welfare, thereby presupposing the existence of stable and extensive legislative, administrative, and judicial institutions whose activity guarantees these rights. The four principles for the allocation of membership – consent (the club), confession (the church), residence (the city), and optimisation of utility (the company) – are partially reconcilable with these norms in various arenas or contradict them. Therefore, not a single one of the four models cited above can adequately illustrate the rules of membership in liberal democratic states. Liberal citizenship must be thought of as either a specific combination of the models or as an alternative model. (a) Liberal citizenship clearly differs from the club and church models in its rules of access. Current members and their representatives cannot select and reject applicants as they see fit. Applicants have rights to be admitted that correspond to the state’s obligations to take them in. The admission criterion that applicants must meet is in no way comparable to a profession of faith, either. The willingness to accept a democratic legal order requires no deep conviction or support of a religious or philosophical doctrine (see Rawls, 1993). At most, evidence to the contrary is sought against which to check it. Serious criminal background or active involvement in anti-democratic political organisations, for example, could be obstacles to naturalisation, but proof of active loyalty is not requested of applicants. (What would this consist of in a liberal democracy anyway?) The main criterion for access is the same as in the urban model of citizenship: membership of society, acquired through lasting ties to the society of the receiving country and most clearly documented by long-term residence. Nevertheless, liberal citizenship differs in two ways from that based on the city model. First, it is not premised on open access to the state’s territory. Second, there is no automatic and gradual acceptance of membership. A state can, but does not have to, control and limit immigration into and permanent residence in its territory without liberal norms being violated thereby. In this regard, admission rights are granted to specific groups such as refugees to whom a state carries a specific responsibility, and family members of persons who have already immigrated. The right to citizenship, however, extends much further than these immigration laws. It applies to the entire resident population.

Rainer Bauböck 39

Even if liberal citizenship can be acquired according to the duration of one’s residence, it is still more than a retrospectively ascertained prescriptive right gradually established by virtue of habitual use. It is granted at a particular time, and applicants have the choice of whether or not to accept it. This opportunity to choose actively exists only for immigrants and, in some cases, for second-generation aliens.6 It does not apply to the native population. On the one hand, it is a privilege justified by the circumstance that immigrants also have relevant ties to their own countries, ties that would be disregarded if automatic naturalisation were imposed. On the other hand, the choice is, in some respects, also an expression of a special duty of immigrants to document their definitive affiliation to the political and legal community of the receiving state by making a conscious decision. This declaration should be interpreted as that minimum of ‘affirmation’ or, better, commitment which can be required of immigrants in liberal democracies as well. The rationale for this special responsibility may be found in a socialisation theory of citizenship. The liberal state, through its institutions, must bring up its young citizens to show commitment to its democratic norms and must create for its adults an incentive system that makes respect for these norms of liberal democracy appear reasonable to the individual. This civic attitude towards politics cannot be guaranteed by procedural norms operating at the level of constitutions, legislation and public administration. Respect for these norms on the part of the state and the citizens creates only an external framework within which the latter can begin to understand themselves as members of this particular democracy with its specific traditions and institutions. Immigrants have not shared in this experience. In this sense, voluntary naturalisation does in fact express a particular kind of resocialisation. The test of free choice must not be misunderstood as education for democracy, which is needed by those who have grown up in undemocratic or less democratic states. In principle, all people must be recognised as having the capacity to be citizens of a liberal democracy as long as they, as individuals, have not provided proof to the contrary through their actions. Blanket collective discrimination through exclusion of certain groups from eligibility for naturalisation would be a crass self-contradiction in liberal theory. What naturalisation expresses is nothing more or less than the personal decision to want citizenship in a particular democratic nation (and not in a liberal democracy in general).

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The following additional observations about this liberal concept of optiona1 citizenship are intended to illustrate how it contrasts with the models described in the preceding sections. First, the ‘resocialisation’ referred to above is primarily an act of self-education. The receiving state is not a teacher, the immigrants going through the process of naturalisation are not pupils, and nominal citizenship is not an examination certificate. With voluntary naturalisation, immigrants document that they have familiarised themselves with the political and legal system of the receiving state to the point that they can make this decision responsibly. Only on this condition is it understandable why immigrants can enjoy a legal entitlement to naturalisation without being vetted for their personal aptitude. Second, the curriculum for this education process is not prescribed. The immigrant does not take a course in constitutional law, the political system, the geography of the country or national history. Such knowledge may be useful but is extraneous to the process of self-education. Whether a state is what Rawls (1971) calls ‘well-ordered’ is shown by the effect that its laws and traditions have on society. Migrants catch up on political socialisation by participating in civil society. There are two major obstacles: one socio-structural (ethnic segregation) and one communicational (insufficient knowledge of the language).7 Experience in numerous receiving states shows that both obstacles can be overcome only by incentives and opportunities. Sanctions against immigrants who ‘do not want to be integrated’ are bound to be counter-productive in the context of a liberal state. Third, it is a matter of free choice between fair alternatives. The result of becoming familiar with the receiving state can just as well be a decision not to be naturalised. These alternatives cannot have the same value for everyone, but they must be offered at their fair value. For example, the options are no longer fair if refusal to be naturalised means the threat of having to leave the country. The reason behind a decision against naturalisation does not necessarily indicate a criticism that the receiving state is insufficiently liberal or democratic; it may be based just as legitimately on special (legal, social or emotional) ties to the country of origin. The principle of voluntary application implies that the reason for deciding against naturalisation remains a private matter anyway, whereas the decision to acquire nominal citizenship represents a public act of consent. Fourth, the decision for naturalisation requires time in which to gain experience with the receiving state and its institutions. In this context the duration of the immigrant’s residence as a factor in the process of

Rainer Bauböck 41

naturalisation acquires a sense different from that in the city model of citizenship. It is no longer only a matter of consolidating membership within a society but of integrating into a political and legal system. Fifth, acquiring practical experience with this system presupposes the granting of civil rights before naturalisation. In the hierarchical system of a corporatist state, immigrants could form their own class having rights and responsibilities different from those possessed by the status groups of the native population. The same is true for a republican form of democracy without a liberal norm of inclusion. The Athenian metics were neither slaves nor citizens. Some of them could even become naturalised under difficult conditions. But their special legal status in no way affected the internal legitimacy of an egalitarian republican democracy based on the club model. In liberal democracies, however, egalitarian rights and the imperative of inclusion are coupled. Practising liberal citizenship therefore requires not merely rights but essentially equal rights. That does not mean that all rights have to be equal and that no difference can be tolerated between resident aliens and nominal citizens. Inverting the club model which starts from the fundamental inequality between members and outsiders, one would, however, have to give case-by-case justification for exceptions to equal treatment, and that justification would, in turn, have to rest on the special requirements of liberal citizenship itself. This argument refutes a major objection to the liberal model of optional citizenship. That objection is that automatically transferring citizenship to the native population and granting immigrants free choice for naturalisation creates, at the very least, the possibility of violating the norm of inclusiveness. This consequence can be avoided under two conditions: first, by allowing the native population, too, the freedom of choice to relinquish their citizenship and acquire an alternative one, provided they emigrate; and second, by granting resident aliens legal rights as denizens, a status that would minimise the gulf between them and those enjoying full nominal citizenship. The latter condition applies the norm of inclusiveness to citizenship rights themselves rather than to the formal status of nominal citizenship Not until the two are decoupled does the decision to be naturalised become an expression of commitment rather than one of social pressure or the calculation of individual benefit.8 This view brings up a difference between liberal roles for admission and the company model. They both encompass freedom of choice between alternative options in conjunction with a right to be admitted that is not restricted by selection according to personal suitability for

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the objectives of the association, as is the case with clubs. What differentiates them is that, first, there are no cost barriers for membership in the liberal state; second, all members are allowed to acquire only one ‘share’, with each share having the same value; and third, the purchase of this ‘share’ by those who have not inherited it is not a profit-motivated investment in a business but rather the decision to ratify a pre-existing social membership by entering into formal affiliation with the corresponding legal association. (b) In contrast to the club or company model, multiple membership is not the rule for liberal citizenship, but nor is it a problematic exception, as in the city model. Nor is it precluded from the outset, as in the religious congregation. It is an option that must be held open to those who can make multiple societal membership plausible. In a world of states that are closing themselves off to immigration and restricting the access to citizenship, the migrant who travels around collecting citizenships and who can present a different passport at each border is a subversive element broadening the scope of liberty. At the same time, the aim of liberal democracy cannot be to function as a supermarket for citizenships. Nor may one countenance the imposition of dual citizenship on people whose state of origin refuses to allow their expatriation. As with the decision on acquiring a new nominal citizenship, the decision on expatriation must be voluntary, legally unassailable, and meaningful in the sense of disaffiliation from a community of rights. (c) As mentioned above, the exit rules of liberal citizenship are largely the same as those prevailing in the city model. They clearly have least in common with intolerant religious communities that do not allow their members to leave. The exit rules of liberal citizenship differ from those of the club or company as well in that loss of citizenship is difficult if a person remains in the country and, if the person is abroad, at least an examination is warranted as to whether statelessness would result. (In their relations to a totalitarian state, emigrants have a right to opt for voluntary statelessness, in which case, however, a liberal receiving state has a strong obligation to offer its own citizenship or even automatically grant it. As regulated by international conventions, the general obligation to avoid statelessness can therefore apply differently to various kinds of regimes.) In the city model, internal loss of citizenship is precluded from the outset. One could consider permitting it in a liberal state under certain circumstances – say, in cases of voluntary renunciation of citizenship by previously naturalised dual nationals who have definite intentions of returning but cannot do so in the short term.

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(d) In the liberal model the possibility of mandatory expatriation is minimised. A person is unconditionally protected from internal expatriation and deprivation of citizenship in conjunction with banishment. Nor can a person be deprived of citizenship simply because he or she has resided abroad for a long time. Unceremonious deprivation of citizenship can be justified only if another citizenship is acquired and there are indications that the previous citizenship has been tacitly renounced. Even then, however, it is only a policy that may be pursued; under liberal principles it is by no means required. None of the four models provides sufficient grounds for such strong protection against the loss of citizenship. It is based on the individual’s elementary need of protection against the state’s monopoly on power. However, such protection can be guaranteed only by placing the individual under that very monopoly. As Hannah Arendt (1967) clearly recognised, the status of the citizen (including that of a foreign citizen) is the only effective basis for the assertion of human rights in a system consisting of independent states. Theories of the social contract based on Locke’s thinking as reflected in the club and company models, and theories of the state as a community of values as expressed in the church model, cannot adequately capture the individual’s position of being at the mercy of the state and relying on it at the same time. (e) In the words of John Rawls (1993: 40–3), a well-ordered democratic society is neither a community nor an association. Unlike an association, it has no ultimate purposes. Its constitutional objectives postulate general norms of coexistence, but they do not permit one to put a value on the contribution of individuals or to reward them according to their contribution to collective goals. The status of citizen is the same for all members, and the contribution that can be expected is (in my opinion) not a criterion for the admission of new members. For this reason the club model as a voluntary association dedicated to pursuing a specific collective purpose is disqualified as a useful analogy. The company model takes into account neither the basic equality of citizens nor the significance that social co-operation has for an affiliation for the society, a significance that reaches beyond the mere optimisation of individual benefit. Some aspects bearing on the membership of individuals in societies lie beyond the bounds of rational choice. Being embedded in a network of social co-operation not only defines each individual’s available options for affiliation but also shapes the individual’s preferences regarding those options (without determining them completely).

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However, a society governed by liberal precepts is not a community in terms of shared, comprehensive philosophical or religious doctrines, either. Liberal societies are pluralistic in this respect, meaning that liberalism itself need not be shared as an all-embracing social doctrine or Weltanschauung. The procedural principles and basic rights in liberal democracy must be acceptable as a reasonable basis for a state polity from the perspective of rival doctrines. A stable liberal democracy expects – and needs – a minimum of political involvement and social solidarity from its citizens. The state can neither force the issue with sanctions nor rely on a universally shared moral sense of duty that stamps the passive or silent citizen as an outsider. But one may reasonably hope that: 1 the stable guarantee of comprehensive rights of citizenship promotes the propensity to exercise them responsibly; 2 the inevitable loss of voluntary loyalty in a bureaucratic state can be compensated for if the state itself restricts its domination over those subject to it; and 3 the civilising of competition and conflict in civil society creates distinct areas for the legitimate pursuit of individual self-interest and liberates spontaneous resources of solidarity between the members of such societies. Rawls (1993) bases his theory of political liberalism on the assumption that societies are closed systems of co-operation among individuals throughout their complete lives, from birth until death. However, the increase in transnational migration is a modern phenomenon that makes it necessary to broaden this framework. In addition to issues surrounding liberal norms in matters of immigration, that expansion must also include the principles of naturalisation considered above. Notes 1 A revised summary of the argument presented in this contribution has been published in R. B. Bauböck (1994) Transnational Citizenship: Membership and Rights in International Migration, Aldershot, UK: Edward Elgar, pp. 160–71. The author gratefully acknowledges Edward Elgar’s permission to publish this text. 2 I suggest the term ‘nominal citizenship’ as a translation of the German Staatsangehörigkeit, that is, citizenship as a formal legal relation between a state and an individual. Often this interpretation of citizenship is also referred to as ‘nationality’, which, however, may cause considerable confusion because nationality is also used to categorise different autonomous ethnic groups within a single state. In a broader sense, citizenship refers to a bundle of rights and obligations attached to the status of membership in a

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3

4

5 6

7

8

democratic state. This is the interpretation given by T. H. Marshall in his classic essay of 1949. Although the German term Staatsbürgerschaft is mostly used synonymously with Staatsangehörigkeit, one can use the former when referring to this substantial kind of rights-based citizenship (Grawert, 1984; Habermas, 1992: 638). Neo-republican authors often refer to citizenship also as a set of practices that characterises the ‘good citizen’ (e.g. Oldfield, 1990; van Gunsteren, 1992). In his discussion of citizenship as a form of membership, Walzer (1983: ch. 2) uses the club, the family and the neighbourhood as analogies, with the neighbourhood corresponding largely to the model of the city as discussed here. See Jordan (1989), who, however, does not go into the difference between club goods and public goods, the latter of being freely available to everyone (including non-members). See Bauböck (1993) for a more detailed comparison and for the historical connection between urban citizenship and national citizenship. I assume here that ius sanguinis extending beyond the first generation to be born within the country is irreconcilable with the liberal requirement of inclusiveness. Cultural assimilation going beyond the acquisition of basic knowledge of a dominant language cannot be considered a requirement for integration into liberal societies. In Australia, where citizenship can already be obtained after two years but does not imply much legal advantage, the naturalisation propensity is still quite high, especially among non-European immigrants and among youths who have grown up in Australia. Evans (1988: 246) interprets these results as a gradual growth of commitment: ‘The decision to become an Australian citizen should be seen as a ritual, public affirmation of that commitment.’

References Arendt, H. (1967), The Origins of Totalitarianism (rev. ed.), London: George Allan & Unwin. Bauböck, R. (1993), ‘Einbürgerungen. 29 Thesen über Immigrations, Staats- und Stadt bürgerschaft’, Migration, 1, 129–46. Evans, M. D. R. (1988), ‘Choosing to be a Citizen: the Time-Path of Citizenship in Australia’, International Migration Review, 22, 243–64. Grawert, R. (1984), ‘Staatsangehörigkeit und Staatsbürgerschaft’, Der Staat, 23, 179–204. Habermas, J. (1992), Faktizität und Geltung, Frankfurt am Main: Suhrkamp. Jordan, B. (1989), The Common Good: Citizenship, Morality and Self-Interest, Oxford: Blackwell. Marshall, T. H. (1965), ‘Citizenship and Social Class’, in Class, Citizenship, and Social Development: Essays by T. H. Marshal1 New York: Anchor Books, 71–134. Oldfield, A. (1990), Citizenship and Community: Civic Republicanism and the Modern World, London: Routledge. Rawls, J. (1971), A Theory of Justice, Oxford: Oxford University Press. Rawls, J. (1993), Political Liberalism, New York: Columbia University Press. van Gunsteren, H. R. (1992), Eigentijds Burgerschap, The Hague: Weten-schappelijke Raad voor het Regeringsbeleid. Walzer, M. (1983), Spheres of Justice, New York: Basic Books.

2 The German Concept of Citizenship and Nationality Dieter Oberndörfer

The concept of the national state1 Historical origins The ideological roots of the concept of the ethnic nation-state go back to German idealism and romanticism of the late eighteenth and early nineteenth centuries, particularly as expressed in the philosophies of Herder, Fichte and Schelling. In Germany, ethnic nationalism acquired its political potency and dynamism in the wars of liberation against Napoleon. The nationalism of the ‘French’ Republic had suppressed the right of the German states to self-determination and ignored the claims of German language and culture. In response to French nationalism, and as a rallying point in their struggle for an independent nation-state, the Germans raised ethnic nationalism to a state ideology. As such, it became the ideological foundation of Bismarck’s Reich, and later still the ideological time bomb with which the National Socialists destroyed the Weimar Republic. Basic axiom: unity of people and state within the nation Ethnic nationalism holds that only members of the dominant ethnic group and their descendants are entitled to full citizenship. Since ethnic affiliation is acquired by birth, that is, by blood, ethnic nationalism is inherently racist. Immigration and the integration of members of different ethnicities are incompatible with the concept of a nation of people with common ethnic origins. The basic political axiom of ethnic nationalism is unity between people and state. This unity is realised in the nation. All peoples – meaning, in effect, one’s own people – have the right to live in their own sovereign state. Multiethnic states are not nations, because a 46

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nation is an entity for a single ethnic group. In a nation there is no place for other ethnic groups. The multiethnic state and the nation are mutually exclusive, incompatible concepts. This was a revolutionary idea. It directly contradicted traditional European forms of political organisation. Up to this point, rulers had always held dominion over different peoples. Since the time of Alexander the Great, every prominent state, ancient or modern, had been multiethnic. Indeed, the reputations of famous rulers derived from the fact of lordship over many peoples. In his will, Stephen the Great of Hungary labelled a kingdom with only one people and one tradition as weak and fragile. Ethnic minorities have no rights of residence or existence in ethnic nation-states. They are seen as trespassers on national territory, and a threat to national unity and the purity of the ethnic national culture. Ethnic nations, therefore, may not open their borders to ‘foreign’ immigrants and become immigration countries. The ideology that legitimises ethnic nation-states in terms of ethnicity also programmes them for homogeneity. Hence, their histories, even to the present, are filled with recurrences of repression, persecution and even annihilation of ethnic minorities by the dominating national group. After the First World War, discrimination against ethnic minorities was rife in almost all ethnic nation-states in eastern and south-eastern Europe, in particular Poland, Czechoslovakia, Hungary and Yugoslavia, and their members were treated as secondclass citizens. In the first case of genocide in modern times, three million Armenians were killed in the name of Turkish ethnic nationalism. The Holocaust perpetrated by the National Socialists, the most extreme form of German ethnic nationalism, was ethnic cleansing in the name of ethnic nationalism at its most horrific. People and territory According to the ideology of ethnic nationalism, each ethnic group has its own homeland, a historically determined national territory. This approach has legitimised and continues to legitimise a whole range of conflicts over territorial claims. Was the original homeland of the Germanic people in Scandinavia and northern Germany or was it in India? If Scandinavia and northern Germany, this meant that the Germanic tribes – better, the Germans – were the true descendants of the Aryans. If the Aryans came from Asia, then the Indians were possibly more closely related to them than the Germans were. Had Germanic tribes already settled in Polish areas of west Prussia before

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the völkerwanderung? If so, west Prussia ‘belonged’ to the Germans as the ostensible descendants of these Germanic tribes. All these questions of geographic origins were just as important politically for German ethnic nationalism as the question of whether western Slav tribes had settled in Silesia and Pomerania before the Germans arrived in the eleventh century was for Polish ethnic nationalism. The Serbs justify their current oppression and political declassification of Albanians in the province of Kosovo by claiming that this was ‘originally’ inhabited by Serbs and, therefore, ‘belongs’ to the Serbs. In fact, the Serbs settled in Kosovo only at the time of the völkerwanderung. Historical research has shown that the original inhabitants were Illyrians, in all probability the ancestors of the present-day Albanians. The ethnic group and their culture as a political entity Ethnic nationalism demands for all members of the ethnic group the right to live together within one state. Consequently, German nationalism was pan-German from the start. People and state had to coincide. All Germans should be part of the ethnic national state. As the poet Ernst Moritz Arndt put it: ‘What is the German’s fatherland? Prussia perhaps, or Swabia, the land of German wine, or where gulls circle above the Rhine? Oh no, his fatherland must be greater … wherever the German tongue resounds … must all be part of Germany!’ According to Johann Gottfried Herder, each people has its own ‘genetic individuality’ and soul. The national language and national culture are concrete expressions of this soul, or ‘national spirit’. Together they form an intrinsic unity. Their purest forms, unadulterated by foreign influences, lie in the distant past, the language and culture of the ancient Germans, for instance, and the Aryans, the ancient Slavs and Turks. Hence, the various national languages should be purged of foreign words and the national culture of foreign influences. Ethnic philology – Germany, for instance, or German studies – as well as ethnology and folklore are key ideological disciplines. Their purpose is to reveal the ethnic spirit in language and culture and free it of foreign influence. Ancient customs must be preserved and revived. The political order and the law must reflect ‘unearthed’ ethnic traditions – in reality, traditions constructed by historians and philologists. Foreign cultural influences can be accepted or tolerated to the extent that they can be incorporated into one’s ethnic culture. Thus, although Christianity was essentially foreign to Germanic culture, the National Socialists were prepared to put up with the specifically Germanic form practised by ‘German Christians’.

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The prime objective of political ethnic nationalism is to protect the territory of the ethnic group and preserve its language and culture. All members have a moral obligation to identify with the ethnic community and its culture, to subject all individual interests and goals to it in the event of conflict, and even to sacrifice their lives for it in the hour of need. Wrongs which may have been committed against ‘the’ national community, the collective super-ego, are to be avenged and the honour of the nation restored. Heinrich Heine ironically quotes a pro-Germanic boozer in a Göttingen bierkeller: ‘that one had to take revenge on the French for Conrad of Staufen, whom the French beheaded near Naples’. The inherent logic of nationalism dictates that one’s own people can commit no wrong against other peoples. As the nation is quintessentially good, the ethnic national does not accept violations of others’ human rights as acts of the nation. Like Rousseau’s popular democratic mysticism, according to which the people seek only what is good, nationalism postulates that one’s own nation and its political actions exist in a state of moral innocence and purity. Moral injustice towards other peoples is always the action of individuals, incompatible with the ‘true’, the good national tradition, and hence not associated with it. As the law and cultural values are supposed to reflect the tradition of each ethnic group, universal human rights are rejected. By appealing to vague ‘national’ values, ethnic nationalism breaks with the tradition of western constitutionalism. More recently, African rulers, including many representatives of awful regimes, have repeatedly sought to justify their own inhumane behaviour on the grounds of apparent or actual legal traditions – ‘people’s rights’. Ethnic nationalism treats the ethnic group as a mystic community in which all individuality and all generations from prehistoric times up to the present are subsumed. The individual is born into it and cannot leave it. Even ‘renegades’ remain members and can be brought to account. People who had German national traditions and language, but were unwilling to accept the political unity of the German nation state – Bavarians, Guelphs of Lower Saxony, citizens of Württemberg, or Alsatians who remained loyal to France – were seen as having a false consciousness and being, in fact, traitors. Germans abroad had a duty to remain German and to opt for Germany in any conflict of loyalties. This view was given statutory effect in the Law on German Nationality of 1913 (which is, with amendments, still in force) which repealed the regulation that Germans who resided outside the country for more

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than ten years lost their German nationality. German blood was not to be lost through emigration. Ideology based on the misrepresentation of history As in all forms of nationalism, ethnic nationalism distorts history and makes use of myths to underpin the nation-state ideology. These misrepresentations were a feature of historiography in all European states in the nineteenth century. In Germany, thanks to ethnic nationalism, they were accepted as common wisdom among the educated middle classes and the effects can still be felt today. In the nineteenth century, German historians devoted an enormous amount of intellectual effort to concocting a quasi-organic, linear continuity in German history, from its beginnings among the Germanic tribes to its culmination in the Second German Reich. The Romaneducated Cheruscan prince, Arminius, ‘Hermann the Liberator’, Luther, the reformer, and Frederick the Great, the king of Prussia who spoke and wrote fluent French and broken German, were all instrumentalised as heroes in Bismarck’s struggle to create a German nationstate. The Holy Roman Empire of Charlemagne and his successors, at the height of its power a multiethnic empire, was ‘misconstrued’ as an ethnic German state, that is, the holy Empire of the ‘German’ nation. Yet, even in the fifteenth century, Church Councils used the natio Germania as a collective term of canon law for all peoples that did not belong to the French, Italian or English nations. In other words, the natio Germania included the Poles, Bohemians, Hungarians and Scandinavians as well as the Germans. Nineteenth-century ‘spin doctors’ turned Prussia into the historic precursor of the German ethnic nation-state of 1871. It was conveniently forgotten that, after the Third Polish Partition, Prussia had more Polish than German inhabitants and that the Prussian king’s famous call to arms against the French in 1812, ‘To my people …’, was published in German, Serb and Polish. In the records of the Congress of Vienna in 1815, Prussia is officially described as a Slav kingdom. In the same year, the Prussian king also explicitly guaranteed his Polish subjects the right to use the Polish language in courts and schools. This promise was broken after 1871 after the Second German Reich adopted a policy of mass Germanisation. One deed that was well ahead of its time was Frederick the Great’s decision to grant asylum to Calvinist French Huguenots in Lutheran Prussia. Given the deep rift between the Lutheran and Reformist doctrines at the time, it was a revolutionary step for a predominantly Lutheran state to accept Huguenots – comparable, say,

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to inviting large numbers of Muslims or Hindus to settle in the Federal Republic of Germany today. Frederick the Great also encouraged Muslim Tartars to settle in Prussia and expressed his readiness to build mosques for them. His Prussia had very little in common with the ethnic German state founded in 1871. Nationalist ideology in the nineteenth century and the Federal German Fundamental Law The philosopher Fichte was the first to sacrifice fundamental republican constitutional rights in favour of a strong ‘ethnic nation’ state. His ideas on educating Germans are the horrific ravings of a totalitarian, ethnicist Jacobin. The ‘Greater German’ solution debated at the National Assembly in Frankfurt in 1848 ultimately failed because the Germans and the peoples of the Austro-Hungarian Empire were infected with ethnic nationalism and unable to agree on a political union that would encompass all of them. The time of the supranational empire was gone. Like the cosmopolitan ideas of the German Enlightenment, it was no longer politically viable. From this point on, the democratic, republican forces of German nationalism also lost their appeal. Initially, many had hoped that a German nation-state would sweep away the principalities and establish a single republic. After the representatives of the feudal order approved the ‘Small Germany’ Bismarck had wrought with ‘blood and iron’ in 1870–71, the innate logic of ethnic nationalism began to shape ideas on the internal order of the ethnic nation-state. Unity and strength, superiority and the right of one’s own ethnic group to survive at the expense of other ethnic groups increasingly dominated the goals and policies of the ethnic nation-state. The concept of the republic – legal and political equality for all – was defamed as western, foreign and un-German. This can all be found in Thomas Mann’s Confessions of an Apolitical Person. The ethnic concept of the state was the predominant ideology in the Second German Empire and the Weimar Republic. Yet, on account of the Poles in West Prussia, the Danes, Jews and other minorities, the Second Empire was still a multiethnic state. The Polish and the Danish populations even had their own representatives in the Reichstag. The Weimar Republic was also multicultural on account of the Jews. Only under National Socialism was Germany ethnically purged and homogenised. German descent became the legal requirement for citizenship. As the Fundamental Law of 1949 postulated the reunification of ‘the’ Germans and as Article 116 extended the right to German citizenship to all expelled and ethnic Germans, the new

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Federal Republic was also a community based on common ethnic origin. So-called Saxons from Siebenburgen, whose ancestors had emigrated in the thirteenth century from Lorraine, Luxembourg and the Rhineland to what is now Romania, were allowed to resume German nationality. Yet it is still difficult for third-generation foreigners living in Germany to acquire citizenship, even though they were born there, are part of contemporary German culture, and often speak better German than German nationals from Poland or the CIS states. Granting citizenship to ethnic Germans from eastern Europe after 1945 was a humanitarian gesture towards political refugees, which is what the ethnic Germans were. However, this gesture revived the concept of Germany as an ethnic state. In the eyes of the postwar generation, the pre-1990 Federal Republic of Germany was ‘only’ a state legitimised by its constitution, for Germany was still not unified. Later, when it began to seem improbable that the two Germanies would ever be unified, the Federal Republic began to be accepted by its citizens as a nation in a class of its own, a state legitimised by its constitution. The political foundation of the pre-1990 Federal Republic was not German identity, but the constitution, for there was another German state at the time, the former German Democratic republic, which no one expected would collapse. With the unification of the rump of Bismarck’s nationstate, ethnic nationalist beliefs were bound to be revived. The decisions on whether to grant or refuse citizenship to foreigners living in the Federal Republic and to accept or refuse further immigration have special significance for the future self-perception of the German state, namely whether Germany remains open to Europe or returns to the provincial tribalism of ethnic nationalism. A more liberal approach towards citizenship for foreigners and towards immigration would break with the concept of ethnic nationalism and simultaneously constitute a vital step in realising liberal democracy in Germany.

Reception in eastern Europe, south-eastern Europe and Asia Herder’s ethnic nationalism struck a strong political chord above all in eastern and south-eastern Europe. His praise of the Slavs ensured their enthusiastic reception of his thought, which they reprocessed into a virulent form of nationalism. According to Herder, the Slavs were more original and less tired than the barbaric and warlike Germanic peoples. Bassam Tibi, the Syrian-born German philologist, and others have shown that the spiritual fathers of secular Arabic nationalism also borrowed from Herder’s ideas. The same applies to Iqbal, the father of

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Pakistani nationalism, who came into contact with German romanticism during his studies in Germany. German romanticism – as mediated through Indology – played a significant role in the emergence of Hindu Aryan nationalism in India and Singhalese Buddhist nationalism. Historians of ethnic nationalism in eastern and south-eastern Europe were as inventive as their German colleagues in simplifying complex historical inter-relationships and aggrandising the apparently age-old struggle for an independent ethnic nation. Polish history was reconstructed as an endless struggle from prehistoric times right up to the present for independence and a separate identity. The Poles were as interested as German nationalist historians in determining whether the Silesian princes, Copernicus and Veit Stoß were German or Polish. The Teutonic Order was demonised. The achievements of German settlers in the Polish Empire, in particular the founding of towns and cities, whose citizens had been Polish since the Middle Ages, were all condemned as failed attempts at Germanisation. This interpretation overlooked the fact that Poland was not a Polish nation-state but a feudal empire in which many nations had their homelands, an empire characterised by the high degree of ethnic and cultural tolerance – as demonstrated by the immigration of Jews from Germany. In the conflict with the Prussian version of German Protestantism in the nineteenth century, however, God became an exclusively Polish Catholic God. The preferred borders of the Polish nation-state were those of the mediaeval multiethnic empire of Poland and Lithuania. This pattern of German and Polish ethnic historicism is repeated by the Hungarians and the Czechs, and by every people seeking to legitimise its own ethnic nation-state. Like bacteria in a deep-freezer, the germ of ethnic nationalism survived Communist dictatorship in the eastern bloc and Yugoslavia. The Communist regimes were indeed national prisons. It is not in the interest of dictatorships to devise integrative forms of codetermination or federal political structure or education capable of harnessing the nationalism of different ethnic groups for republican political culture. Thus, the potential resident in ethnic nationalism for oppressing and persecuting ethnic minorities is once again being given free rein in what was the Second World of the former Communist bloc. Armenians and Azerbaijanis hound down and kill one another. Lithuanians, who have just succeeded in liberating themselves from the yoke of Soviet nationalism, are now oppressing their own Polish minority. The Romanian Moldavians are cleansing their libraries of Russian literature

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and putting pressure on their minorities. The Romanians are persecuting their Hungarian and German minorities, the Serbs their Albanians, Croatians and Bosnians. The Serbs see themselves as the true descendants of the ancient southern Slavs. In this view, the Croats, Slovenes, Macedonians and Bosnians have been estranged from ‘their’ real southern Slav Serb nation by centuries of Austrian and Ottoman rule. In much the same way as German nationalists judged Alsatians, the Serbs maintain that the other peoples of Yugoslavia have a false consciousness. They must return to ‘their’ true nation, the Yugoslav-Serb nation – by violence if necessary.

Ethnic culture and cultural freedom in a liberal constitutional state Nation-states have always tried to dictate and impose their national identity on their cultural traditions. Religion, art, cultural preference and even food and clothing have been standardised across nations. A true Pole or Irishman had to be Catholic, and a German living in Bismarck’s Empire should be a Protestant. Under the National Socialists, Germans were even encouraged to return to mythical beliefs of the Germanic tribes. Not only religion, but also art, music, literature and the performing arts were to be free of foreign, corrupting influences. Alien, un-German works of art were therefore destroyed in the Third Reich while mediocre German works displayed in the Haus der deutschen Kunst in Munich were hailed as part of the nation’s cultural heritage. Playing or even listening to jazz – ‘nigger music’ – was made a criminal offence. Even personal taste was nationalised: the wearing of German national costume was encouraged and eating and drinking praised as proper German behaviour. And in the second verse of the German national anthem, the petite bourgeoisie sang the praises of ‘German women’ and ‘German wine’ with particular fervour. The ‘German oak’ was more beautiful and stronger than French or Italian oaks. Nationalists have always had a provincial sense of culture. Human cultures have developed in a process of cultural exchange across millennia, frontiers and ethnicities. Culture is not autistic. In Christianity, the forefathers of the Germans, the Germanic tribes, embraced a cultural development of the Middle East. In the Middle Ages and the Renaissance, the rediscovery of Graeco-Roman philosophy and literature had far-reaching consequences for the culture of the European peoples. German idealism, neo-classicism and romanticism were all tapped for the spirit of the ancient world. The great

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works of literature have been translated into German: Homer, Shakespeare, Molière and Dante are now an integral part of German culture, too. Bach, Beethoven and Mozart (were they Germans or Austrians?) drew on the European musical tradition and left legacies for all mankind; their works cannot be claimed as national property by anyone. The consequence for any people of cleansing culture on the basis of ethnic criteria would be serious to say the least. The Germans would have to return to Wotan and Freia and dress in bearskins, because material progress, technology and production methods have also developed as part of a long history of cultural exchange. Cultural variety is present in all human society. Cultural homogeneity in the sense of seamless agreement on cultural values without conflict has never existed anywhere. Cultural pluralism is the result of reinterpretations of tradition and of cultural exchange. This was also the root of cultural conflict. In this sense, all societies at all times have been multicultural. This cultural variety and dynamism is indigenous to every society. In the liberal republic it is also constitutionally protected. In this way, and in contrast to ethnic nationalism, the liberal state based on the rule of law is open to cultural variety and vibrant culture. The republic is multicultural and protects cultural freedoms. Cultural freedom includes freedom of opinion, freedom of religion and the right to practise one’s religion, freedom of artistic expression and freedom of choice of cultural values in the broadest sense; in other words, the freedom of taste in everyday life. Article 4, Sections 1 and 2 of the Federal German Constitution take all this into account: ‘Freedom of thought, freedom of conscience and freedom of religious and philosophical opinions are inviolable … The right to practice religion shall be unrestricted.’ In Article 5, cultural freedom is defined to include freedom of art, science, research and teaching: ‘Art and science, research and teaching is free.’ Cultural freedom also means that the religious convictions and cultural values of minorities shall not only be tolerated, but may be actively promoted by them. Article 5, Section 1: ‘Every individual has the right to express and propagate his opinions by word of mouth, in writing and in pictures … There shall be no censorship.’ In a liberal democracy there is therefore no established religion, no national art and no national taste. No restrictions are placed on religion and philosophical thought. Any attempt to impose a specific religion or confession on Germans, French men and women or

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Americans as a national duty or characteristic would be an attack on the letter and the spirit of their constitutions. For German, French, British or American citizens, it is their own personal decision whether they wish to belong to a specific Christian faith or convert to Buddhism, Islam or the Bahai religion, or whether they see themselves as members of a secular society without any religious affiliation. The same applies to cultural values. Even if this is unpopular with the teaching establishment, it is up to each citizen to decide whether he or she wishes to read romantic novels, Goethe, the Koran or the tabloids, prefers to listen to Bach, pop or jazz, or chooses to spend free time in museums or engaged in sport. It is not easy to define culture. Cultures are clearly not static. They are dynamic, pluralistic phenomena. Cultural freedom within a republic also takes into account this characteristic of culture that its content changes with history. Thus, German culture today differs radically in terms of values, concepts and acceptable behaviour from the Germany of the Weimar Republic. German nineteenth-century culture was not identical to the culture in the preceding centuries either. The educational canon conceived in the spirit of nineteenth-century German idealism and romanticism that became de rigueur for the small stratum of educated middle-class people (around 3 per cent of the population) has been given a broader scope in recent decades. After the Second World War, there was a cultural revolution in Germany which democratised and widened people’s horizons. Any survey of specifically German features in the country’s culture would reveal a far wider range of vaguer answers in the Federal Republic of Germany than it would in nineteenth-century Germany. The hysterical reaction to a multicultural society in the current political debate in Germany reveals dire undertones. It expresses a desire for a national cultural homogeneity that has in reality never existed in Germany and is impossible in modern German society, where Christians of various confessions and sects and a considerable number of adherents of non-European religions live among a majority of secular citizens. As mentioned above, Germans can become Muslims, Buddhists or Hindus and adopt the cultural values of these religions. This right must also apply to German citizens of nonGerman origin as well as foreigners who either cannot or do not want to become German citizens. The hate campaign against the multicultural society goes back to the wars of religion. It is incompatible with the Fundamental Law of the Federal Republic or the constitution of any other republic.

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The limits of cultural freedom are defined by basic constitutional principles and the rule of law. As religious conflicts seldom lend themselves to compromise, the conflict frequently takes the form of one over the limits of cultural freedom. Conflicts over the potential scope of religious cultural freedoms are not a prerogative of Islam, either, as the dispute over civil marriage in Bismarck’s Germany demonstrates: Christianity has its fundamentalists too. These conflicts have to be tolerated and resolved within the legal system.

German immigration There are approximately seven million foreigners in Germany today. Of these, about 3.5 million have been living there for over twenty years and one and a half million were born there. As the German population is ageing, there can be little doubt that many more foreigners will settle there in future. Even if effective barriers were erected against further immigration, the proportion of foreigners as a part of the total population would continue to rise as a result of differences in birth rates. Yet, according to official policy, Germany does not seek immigrants, only migrants. In other words, unlike immigration countries, Germany does not consider resident foreigners as potential citizens and potential assets to the national community. As far as possible, only ‘Germans’ should be accepted as citizens. Foreigners, by contrast, will continue to be granted a ‘guest status’ with rights of residence for different periods under varying conditions. There are many reasons for the highly emotive political resistance against Germany changing from a state that accepts migrants to an immigration country. As in all countries, people’s attitudes are most strongly conditioned by economic factors. Ideological factors such as the nation-state concept certainly play a role as well, but they should not be demonised. The battle for jobs has evoked racist responses in all European states in the current economic recession. The history of immigration countries teaches us that conflict between the native population and immigrants is typical of times of economic recession and job shortages. That is why the major economic crises in nineteenth-century America led to such acute social conflicts between locals and immigrants, conflicts that were far more serious than the current cleavages between immigrants and native Americans today. The influx of four million foreigners into the pre-1990 Federal Republic after the Berlin Wall was built, when labour was urgently needed, proceeded fairly smoothly, despite Germany’s ethnic

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nationalist traditions. While full employment lasted, there was little if any xenophobia or attacks against foreigners. The first incidence of racism occurred during the 1970s in regions affected by the crisis in the iron and steel industry. In contrast to the post-Wall period, foreigners were now, for the first time, rivals for jobs. The significance of economic issues in attitudes to foreigners is also reflected in surveys, where the greatest potential for xenophobia is always found in rural regions with a weak infrastructure and smallholdings struggling to survive, even though very few foreigners live there and the majority of respondents do not know any foreigners personally. By contrast, although the proportion of foreign residents is much greater in conurbations with high economic growth, there is always much less xenophobia. In Switzerland, there are relatively twice as many foreign residents than in Germany – 17.5 per cent compared to only 7.5 per cent – yet, thanks to strong and stable economic growth with full employment, there have scarcely been any attacks on foreigners. Hence, attitudes towards foreigners are an immediate consequence of economic and social policies. A shortage of jobs or accommodation directly affects attitudes towards foreigners. However, it would be unrealistic to believe that, once the current recession is over and the economic problems of German unification are dealt with, Germany would be ready to move from accepting migrants to welcoming immigrants – to grant millions of foreigners full citizenship instead of just temporary residence permits. The hoary concept of German ethnic nationalism is still an obstacle. Currently, it has been experiencing a revival and been made an instrument and justification for the rash of attacks on foreigners in Germany. Only in times of recession does the concept of the nation-state unleash its inhumane political force. One example of this is the Weimar Republic itself. Ethnic nationalism at the time of the Great Depression made it possible to victimise ethnic foreigners, namely the Jews, as the root of all evil in Germany. In the light of this, an effective economic and social policy is a necessary but not a sufficient condition: ethnic nationalism also has to be replaced by the concept of the republic state. Granting foreigners in Germany full citizenship would enable them to become politically active and pursue their political rights. In this respect, the concentration of foreign workers in large cities acquires a potential electoral significance. A break with ethnic nationalism would mean that in future the only criterion for membership of the political community of Germans would be acceptance of the constitution and observance of the law.

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The Fundamental Law of the Federal Republic constitutionally guarantees the equality of all people, irrespective of background, race or religion, as well as the freedom of culture, the freedom of religion and of cultural values. The legitimacy of republic constitutions is conditional on the realisation of their constitutional norms. Open acceptance of foreign immigrants from foreign cultures is fundamental to their credibility. Refusal is a rejection of legitimacy underpinning the constitutional state, its roots in common values shared by all mankind, in which civil rights derived from human rights are given legitimacy. Note 1 Cf. D. Oberndörfer, Die offene Republik (The Open Republic), Freiburg 1991 (Herder Spektrum; v. 4034); idem, Der Wahn des Nationalen (The Mania in Nationalism), Freiburg 1993 (Herder Spektrum; v. 4279); idem, ‘Assimilation, Multikulturalismus oder kultureller Pluralismus’ (Assimilation, Multiculturalism, or Cultural Pluralism), in Klaus J. Bade (ed.), Migration – Ethnizität – Konflikt, Osnabrück 1995 (Schriften des Instituts für Migrationsforschung und Interkulturelle Studien: IMIS-Schriften, v. 1).

References Oberndörfer, D. (1991), Die offene Republik (The Open Republic), Freiburg: Herder Spektrum, v. 4034. Oberndörfer, D. (1993), Der Wahn des Nationalen (The Mania in Nationalism), Freiburg: Herder Spektrum, v. 4279. Oberndörfer, D. (1995), ‘Assimilation, Multikulturalismus oder kultureller Pluralismus’ (Assimilation, Multiculturalism or Cultural Pluralism) in K. J. Bade (ed.), Migration – Ethnizität – Konflikt, Osnabrück: Schriften des Instituts für Migrationsforschung und Interkulturelle Studien: IMIS-Schriften, v. 1.

3 Citizenship and Nationality in Britain Zig Layton-Henry

In the last decade we have witnessed a tremendous revival of interest in the concept of citizenship. In political science, Michael Moran (1989) has argued that citizenship seems to have overtaken class, market and even democracy as the key concept of the discipline. This is an overstatement of what has occurred, but one can hypothesise that the collapse of the Soviet Empire and disillusion with socialism and social democracy have undermined the dominance of class and class struggle as the motor for extending rights to marginalised groups. Redefining citizenship in a broader and more generous way is seen by many liberal reformers as the path to greater equality and democracy and to a fairer and more inclusive society. This view may be over-optimistic. The western tradition of citizenship and its related concept of nationality tend to be highly restrictive – to be rooted in national closure with a double meaning of limited access from outside and cultural homogeneity within. Citizenship, as Conover, Crewe and Searing (1990) argue, is not only a means for the acquiring of civil, political and social rights in Marshallian terms but is also an identity that acts as an anchor in situating oneself in society (Marshall 1963). This definition emphasises the view that citizenship is closely related to membership of a national community or membership of society. It suggests that one needs to be a member of the community before one can be a citizen. This ideal model of nation-state citizenship is described most clearly by Brubaker (1989) and his description of this ideal type illustrates the blending of the concepts of citizenship and nationality. He argues that this ideal model of citizenship contains the following elements. It should be: 60

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1. Egalitarian (gradations of membership status are inadmissible). 2. Sacred (citizens should be prepared to make sacrifices for their state and not regard citizenship in an instrumental way). 3. National (membership of the political community should be simultaneously a cultural community). 4. Democratic (full membership should carry with it rights to political participation and in the long run residence and membership must coincide). 5. Uniqueness (every person should belong to one and only one state). 6. Social consequential (membership valued both objectively and subjectively) (Brubaker, 1989: 3–5). This ideal model of nation-state citizenship shows the fusion of citizenship and national identity and its exclusive nature. The criteria of sacredness, cultural membership and uniqueness are highly restrictive and increasingly obsolete in today’s world. They do, however, illustrate the two dominant sets of assumptions or traditions that underlie definitions of citizenship: the contractual and the communal. The contractual tends to be legalistic and has at its core a strong emphasis on individualism and individual rights. Citizenship is linked to access to rights – civic, political and social (Marshall 1963). The duties of citizenship in this liberal view tend to be relegated to the background as they are seen as illiberal, restricting the individual’s freedom of action. Many Conservatives at the present time are concerned that citizenship has become increasingly unidirectional, emphasising rights or entitlements from the state and no longer stressing the obligations and duties traditionally expected from citizens. The second view is communitarian. It sees citizenship as rooted in the community. People share common traditions and understandings with their neighbours and come together to pursue a common good. They have a common identity and it is their duty to participate in public activities and affairs. The duties of citizens are much more prominent in the communitarian view. In Anglo-Saxon debates the United States is often given as an ideal type of a country where contractual citizenship is most important and Britain is proposed as an example of the communitarian case. However, there is no clear distinction between the two traditions. Those countries which emphasise citizenship by descent from a citizen, ius sanguinis, would seem to fall in the communitarian tradition but these countries are also often republican, with an emphasis on the sovereignty of the people and the rights of citizens, which seem closer

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to the liberal contractual view. Those countries like the United States which fall into the liberal contractual tradition can place strong emphasis on the duties of citizens and demand a high degree of citizen participation and loyalty. Britain has often been regarded as liberal as far as its citizenship laws are concerned. Historically, citizenship has been granted through ius soli and all born on the territory had the automatic right to citizenship, no matter what the nationality of the parents. Also, British citizenship extended to all people born on British territory, no matter whether it was the territory of Great Britain or overseas territories. When New Commonwealth immigrants migrated to Britain in the 1950s and 1960s they had full civic, social and political rights whether they came from colonies such as Jamaica, or from independent Commonwealth countries such as India or Pakistan. The ius soli method was simple and inclusive. It encouraged the integration of people settled in the UK and provided security for the second generation and the ability to identify themselves with their country of birth. It did, however, assume that the second generation would be accepted and welcomed. But the British case is not as straightforward as I have suggested here. It has always been thoroughly confused, as regards both citizenship and national identity. A good example of this confusion is provided by Enoch Powell who in September 1968 drew attention to the divorce between citizenship and national identity. He said that ‘The West Indian or Indian does not by being born in England become an Englishman. In law he becomes a United Kingdom citizen by birth, in fact he is a West Indian or Asian still’ (Smithies and Fiddick, 1969). This quotation highlights a number of problems in the British case. Firstly, few people ever thought of themselves as United Kingdom citizens. They thought of themselves as British citizens and this is the term adopted in the British Nationality Act (1981). Secondly there is no simple definition of British identity. People in the United Kingdom would traditionally have defined themselves as English, Welsh, Scots or Irish and today we could add a whole range of other identities. These identities may or may not be compatible with a British identity. A Scot may be anti-English but pro-British, an Irishman pro- or anti-British, while an Englishman may see no distinction between being English or being British. Also as many people are descended from parents or grandparents with different British national origins, it is not uncommon in Britain for people to slip between national identities, depending on the social context and the advantages and disadvantages of particular identities.

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Historically the key British concept with regard to citizenship has not been nationality or citizenship itself, but rather subject status. People were subjects of the King by virtue of birth in the King’s dominions or territories. This feudal notion of ‘subject’ reflects the fact that Britain does not have a republican tradition, like many other countries, which rejected royal absolutism and vested power in a sovereign people. In Britain, power was vested in the monarch and then later in a sovereign parliament to whom the people remain subject. The notion of subject was extremely convenient; it helped to resolve the problem of the allegiance of Scots after the union of the Crowns of England and Scotland in 1603 at a time when Scotland had its own parliament and political system. Moreover, it kept people in their place, that is, subject to a central authority. It did not raise them up to the status of citizen rulers who could make awkward demands on the government. The Powell quotation is thus both accurate and inaccurate in its reference to birth in England and national identity. Traditionally it is birth on English soil that makes an Englishman rather than descent from an Englishman. This accords with the Anglo-Saxon adherence to ius soli rather than ius sanguinis, a tradition that Britain began to abandon in the British Nationality Act of 1981. I am very fond of Daniel Defoe’s satirical poem, ‘The True Born Englishman’ (Morley, 1899: 175–218). He makes the point that the English, particularly the upper classes, were often of foreign descent and, in his day, of recent foreign descent. The second generation, however, whatever their antecedents, become transformed into true-born Englishmen (and women): Fate jumbled them together, God knows how; Whate’er they were, they’re true born English now. However, Powell is also right in the sense that racism against Third World people in the postwar period has meant that English-born African-Caribbean and Asian people are still not fully accepted as trueborn English men and women, and that they continue, like their parents and grandparents, to experience discrimination and racial violence. They are excluded from full acceptance into the national community and are subject to criticism as not being fully loyal, as when Lord Tebbit suggested his cricketing test of loyalty, ‘Which side do they cheer for?’ or the article in Wisden Cricket Monthly which claimed that black players in the England team lacked the commitment of ‘unequivocal’ Englishmen

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(Henderson, 1995; Independent, 3 July 1995). As a result they often consider themselves to be second-class citizens in a way that people of European descent rarely do.

Citizenship and empire A major complicating factor in the development of British citizenship was the transformation of Britain from the seventeenth century onwards into an imperial power. As overseas territories were acquired, the number of the King’s subjects expanded enormously. There was no clear distinction made between the King’s subjects born overseas and those born in the British Isles; all owed allegiance to him and deserved his protection. British subjects were not, of course, treated equally, and non-European subjects generally had fewer rights and were subject to more restrictions and controls than Europeans. But no separate citizenship was established for subjects in the metropolitan country and the overseas territories. There were a large number of different statuses, not least because the different territories in the Empire were administered in different ways. Some colonies, such as those in North America, had considerable autonomy and, for example, introduced their own naturalisation procedures. The question was then raised concerning whether decisions made in a colony were binding on the metropolitan power in the same way as British decisions were binding on colonial governments (Dummett and Nicol, 1990). Some territories were controlled indirectly, such as the princely states in India, or as British protectorates. These gave rise to a category of British protected persons who had far fewer rights than other categories of British subject. The British government allowed diversity and autonomy, especially after the successful American rebellion, as long as allegiance to the British Crown was paramount (Roche, 1969). The European-governed Old Dominions had by the beginning of the twentieth century all introduced their own immigration laws, generally designed to control immigration from India and China. So British subjects from one part of the Empire/Commonwealth did not have the automatic right of entry to a colony any more than a colonial subject had the right to enter colonial territories other than his/her own. Britain alone in the Empire allowed British subjects the right of free entry to the Mother Country to exercise their rights as British subjects: for example, they could vote in British elections, stand for office, and work in the public service. This right of free entry to Britain was seen as symbolically important in maintaining Britain’s moral authority and right to imperial leadership. It came to be known rather pompously as

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civis Britannicus sum. However, it was symbolic – a right that was not expected to be exercised by non-European British subjects, and when it was exercised, difficulties were created. For example, before 1942, intending immigrants had to produce documentary proof that they were British subjects. Colonial seamen were subject to controls under the Coloured Seamen’s Order of 1925 (Roche, 1969) and it was wellknown that before the Second World War the British armed forces in the UK operated a colour bar (Sherwood, 1985). Attempts to move towards a common imperial citizenship status by adopting common naturalisation procedures from Commonwealth countries failed at the 1914 Imperial Conference.

The British Nationality Act 1948 It was the Canadians who first challenged the outdated feudal notion of British subject and asserted their independence from Britain by passing their own citizenship law in 1946. This put Canadian citizenship above the status of British Subject for Canadians. Moreover, in response to the sensitivities of people in Quebec, the concept of British subject was replaced by that of Commonwealth citizen. The British government knew that other Commonwealth countries such as South Africa, and countries on their way to independence such as India and Pakistan, would follow the Canadian lead. In order to clarify the whole question of British citizenship and nationality, the government introduced the British Nationality Bill of 1948. This Bill proposed two classes of British citizen: first, citizens of independent Commonwealth countries; and secondly, the remainder, who were called citizens of the UK and colonies. It is interesting to note that the citizens of independent Commonwealth countries such as Canada were to remain British subjects and would continue to be able to exercise their rights as such if resident in the UK. The government wished that the links and unity developed during the history of Empire could be continued, albeit more on a basis of partnership, as the Empire evolved into the Commonwealth. In fact, the Conservative opposition attacked the Bill as unnecessary and as undermining the unity of the Commonwealth because, by giving primacy to local citizenship, the derivative British nationality would gradually decline in importance and eventually lapse. Sir David Maxwell Fyfe, who led the Conservative opposition to the Bill, reserved the opposition’s right to revert to the old common citizenship if this should be the wish of the other Dominions and the member states of the Commonwealth.

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He was also concerned lest the provisions for separate categories of citizens might be used to discriminate against Commonwealth citizens, arguing that there would be no point in these new categories unless there was some intention of dropping the idea of the common status of all British citizens and our proud boast of the open door. ‘We are proud’, he said, ‘that we impose no colour bar restrictions making it difficult for them when they come here … we must maintain our great metropolitan tradition of hospitality to everyone from every part of our Empire’ (Hansard, vol. 453, col. 404, 7 July 1948). The consequences that Sir David Maxwell Fyfe foresaw have gradually come about, largely through legislation by his own party. The Conservative commitment to a common British Imperial and Commonwealth citizenship was not to last long. It disappeared as Commonwealth countries increasingly asserted their independence and became untenable as the introduction of immigration controls removed the rights of most British subjects to enter the UK. The British Nationality Act (1948) reaffirmed citizenship acquisition through ius soli, that is, birth on the territory of the UK and colonies, and birth outside the territory to a citizen father, and also through naturalisation at the discretion of the Home Secretary. It introduced a simplified procedure of registration for citizens of Commonwealth countries who wished to become citizens of the UK and colonies, and presumably because of the large number of marriages by British women to foreign nationals during the war it changed the law by which British women lost their citizenship on marriage to a foreigner, and allowed those who had lost their citizenship in this way to have it restored. The Act recognised that independent Commonwealth countries would wish to give priority to their own individual citizenships, but it tried to maintain Commonwealth unity through the reaffirmation of the status of British subject, which would continue for both citizens of the UK and colonies and citizens of independent Commonwealth countries. It did not define British citizenship or British nationality in a restrictive way. A wide variety of peoples were subsumed under the heading of citizens of the UK and colonies, and all these, as well as citizens of independent Commonwealth countries, had the right of access to, and settlement in, the UK.

The decline of civis Britannicus sum Postwar immigration from the New Commonwealth did not receive the welcome that Sir David Maxwell Fyfe suggested that it should. This

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is probably because the policy of the open door was meant to remain symbolic rather than real. It was a means of enhancing Britain’s moral leadership in the Commonwealth, and was not meant as an invitation to immigrate. If the myth had any reality, then it was as a means of strengthening the links between the Old (white) Commonwealth and Britain by encouraging Britons to emigrate to the Old Commonwealth and ensuring freedom of entry to Britain of Commonwealth people regarded as kith and kin. When colonial migrants from New Commonwealth countries began to arrive after 1948, they were unexpected and unwelcome. Neither the political elite nor the general public welcomed black immigrants, despite the labour shortage, and despite their colonial and Commonwealth ties that had been so important during the war and continued to be vital for Britain’s international trade and her strategy to preserve her status as a great power in the postwar world. Gradually a campaign to control New Commonwealth immigration gained support, particularly in the Conservative Party, and a series of immigration control measures were introduced in the decade 1961–71. The major steps were the Commonwealth Immigrants Act 1962, the 1965 White Paper: ‘Immigration from the Commonwealth’, the Commonwealth Immigrants Act 1968, and the Immigration Act 1971. These measures were clearly designed to control the immigration of non-white British subjects from colonial and Commonwealth countries. This was made explicit in the legislation, all of which exempted certain categories of people from control. The 1962 legislation, for example, exempted the Irish who, it was argued, were too difficult to control, since part of Ireland was within the UK. In reality, the Irish were considered to be too valuable a source of labour to deter and were also thought to be easily integrated into the UK population. This positive welcome to Irish people existed at official levels despite the continuing legacy of Irish antagonism to Britain caused by the past colonial relationship and by the continuing division of Ireland. The 1968 legislation exempted from control those with close ties to the UK by birth, naturalisation or descent from a British parent or grandparent. While the leading government and opposition spokesmen denied the Bill was racist, it was clearly designed to restrict the entry of British citizens without close ties to the UK, the vast majority of whom were non-white. The 1971 Immigration Act introduced a new concept of patriality which had been foreshadowed in the 1968 Act. A ‘patrial’ was defined as a person having the right of abode in the UK and included citizens

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of the UK and colonies with close connections with the UK through birth, adoption, registration, naturalisation and residence. But it also included Commonwealth citizens born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the UK and colonies by virtue of their birth in the UK (Immigration Act 1971, Section 2). This section gave privileged access to the UK to people of British descent. The 1971 Immigration Act gave the British government complete control over the entry of non-patrials to the UK, but it did not end public concern over immigration. Interestingly the Heath government was defeated in Parliament in 1973 over new immigration rules needed as a result of the 1971 Act. The government was defeated because many Conservative MPs and their constituents wanted easier access to Britain for their kith and kin in the Old Commonwealth. The government changed the rules to allow people descended from a British grandparent to be exempt from immigration controls, thus widening the definition of ‘patrial’ which had been restricted to ‘descent from a British parent’ during the committee stage of the 1971 Act. Throughout the 1970s, Enoch Powell continued his campaign against non-white immigration, as did the National Front. The expulsion of Asians from Uganda in 1972 and a moral panic over Asian immigrants from Malawi in 1976 helped to maintain immigration as a public issue. Powell increasingly campaigned against family reunification and especially the numbers of dependants entering the UK from the Indian sub-continent. By the mid-1970s a suggestion, first raised by Powell in 1972, that British citizenship should be redefined was receiving considerable attention and support in political circles. Immigration control legislation had resulted in a situation whereby the status of citizens of the UK and colonies no longer defined who had the right of entry to the UK. In international law, all citizens have the automatic right of entry to the national territory and the right of abode. Restricting rights of abode to certain categories of citizen violated international law and exposed the racist nature of the immigration laws. Many politicians of both major parties felt that a redefinition of the citizenship laws would eliminate the basis for accusations of racism. It would also emphasise that Britain was no longer a imperial power and result in a citizenship that was more appropriate to Britain’s reduced role in the world. In April 1977 the Labour government published a Green Paper entitled British Nationality Law: Discussion of Possible Changes. This contained the proposal that there should be two forms of British citizenship: the

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first, British citizenship for those with close connections with the UK, and the second, British Overseas Citizenship for those who were citizens of the UK colonies. British Overseas Citizenship would not carry with it the right of entry to the UK. The Conservatives were coming to the same conclusion. In 1975 a committee of the Society of Conservative Lawyers concluded that the absence of any ‘separate status of UK citizenship available primarily to persons born in the UK or born outside the UK to fathers of UK descent was the most extraordinary anomaly of the present law’ (Conservative Political Centre, 1975). Their report also drew attention to the fact that the immigration laws had created a single citizenship with different rights when it would be more sensible to have different citizenships with different rights. This was becoming the accepted view and in the 1979 general election the Conservative manifesto contained a commitment to introduce a new Nationality Act. The link between immigration and reform of the nationality laws was explicit. The party’s proto-manifesto, The Right Approach, argued that a new Nationality Act would allay people’s fears of unending immigration and establish a rational basis for British citizenship (Conservative Political Centre, 1976). A study group set up by William Whitelaw when he was opposition spokesman on Home Affairs recommended in 1980 that ‘a new separate category of citizenship, namely UK Citizenship, should be created for people who belong and have their homeland in this country and therefore have the right to come, live and work here or, in the words of the Immigration Act 1971, have the right of abode in the UK. Our immigration policies should be based directly on our nationality laws’ (Conservative Political Centre, 1980).

The British Nationality Act 1981 The commitment to introduce a new Nationality Act was the most wide-reaching and important proposal in the Conservatives’ election manifesto. It was not only a break with an ancient tradition, but it affected the status of millions of people from Malaysia to the Falkland Islands, from Hong Kong to Bermuda, as well as in Britain itself. It would define British Citizenship for the first time and effectively make redundant the earlier status of British Subject. As mentioned earlier, the Labour government of 1974–79 had also decided that the nationality law had to be revised, and had published proposed changes. It had argued that a new scheme of citizenship should reflect the strength of the connection that various groups of people had with the UK. It

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proposed two categories of citizen: namely, British Citizens and British Overseas Citizens. This latter group was to consist mainly of people connected with existing dependencies and those who had retained their British citizenship when the colonies or dependencies in which they lived became independent (Home Office, 1977). The government published a White Paper on its proposed nationality legislation in July 1980 (Home Office, 1980). There was tremendous concern and anxiety about the implications of the proposed bill, and representations were made to the government and opposition parties by ethnic minority organisations, the churches, the CRE and civil liberties groups. The government published its bill in January 1981 (Home Office, 1981). The bill set out three major categories of citizenship: British Citizenship, Citizenship of the British Dependent Territories and British Overseas Citizenship. British citizens would be those citizens of the UK and colonies who had a close personal connection with the UK, either because their parents or grandparents had been born, adopted, naturalised or registered as citizens of the UK, or through permanent settlement in the UK. One controversial proposal was that, as a general rule, British citizenship should descend only to the first generation of children born abroad to British citizens born in the UK. This caused consternation to expatriate Britons all over the world, and also to Britons working or serving abroad, many of whom had not themselves been born in Britain as their parents had been involved in imperial service or overseas trade. The bill also proposed that children born in Britain of certain categories of foreign parents, or whose parents were of uncertain status – because of illegal immigration or through overstaying their period of residence, for example – would not automatically be entitled to citizenship. Mr Whitelaw was to tell the House of Commons: ‘The Government sees no reason why a child should ever have citizenship simply because his parents happen to be in the United Kingdom when he is born’ (Hansard, vol. 31, col. 697, 11 November 1982). This was the first time that the Anglo-Saxon tradition of ius soli, conferring citizenship by virtue of birth in the territory, had been questioned. It marked a move, albeit a modest one, towards the continental tradition of ius sanguinis, conferring citizenship by virtue of descent from a citizen. Persons marrying a British citizen would no longer have an automatic right to citizenship, but would be able to apply for citizenship after three years’ residence. Citizenship of British Dependent Territories would be acquired by those citizens of the UK and colonies who had that citizenship

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by reason of their own or their parents’ or grandparents’ birth, naturalisation or registration in an existing dependency or associated state. The third category, British Overseas Citizenship, was essentially a residual one with virtually no rights. It was intended for those citizens of the UK and colonies who did not qualify for either of the first two categories, and related mainly to holders of dual citizenship who lived in Malaysia, but also to East African Asians entitled to come to Britain under the quotas established in the Commonwealth Immigrants Act 1968. British Overseas Citizens would not be able to pass on this citizenship, nor would they have the right of abode in any British territory. It was hardly a citizenship at all – rather, a phasing-out of British Subject status. In reality, it was a strong invitation to those British Subjects permanently settled abroad and with no close connection with the UK to acquire full local citizenship as quickly as possible and end the pretence of a continuing British connection. It was a further indication that the British government wished to divest itself of overseas obligations that were a legacy of its imperial past. There was a risk that if the children of British overseas citizens were refused citizenship by their country of birth, they would be born stateless but, as most of their parents had dual citizenship, the government considered this risk to be slight (Home Office, 1980). The Home Secretary introduced the bill for its second reading on 28 January 1981. He declared that under the immigration laws it would not adversely affect the position of anyone lawfully settled in the UK. It did not discriminate on racial or sexual grounds, he claimed, and it provided the comprehensive and logical overhaul of citizenship legislation that had so long been required and which it had long been the duty of the UK government to introduce (Hansard, vol. 997, cols. 931–41, 28 January 1981). The opposition attack on the bill was even more ritualistic than usual, as they themselves were committed to a revision of the citizenship laws, and the government’s proposals owed much to the previous Labour government’s Green Paper. Conservative backbenchers spent much of the debate making representations on behalf of dependencies such as Gibraltar, the Falkland Islands and Hong Kong. Some of them also argued that it was unjust to distinguish between children born abroad to people who were British citizens by birth and those whose parents were British by naturalisation or registration. There was considerable support for the sensible proposal, put forward by Roy Hattersley for the opposition, that each colony should have its own citizenship rather than the cumbersome common citizenship proposed in the bill

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for British Dependent Territories. Unfortunately the government did not agree to this amendment and the opportunity to simplify citizenship arrangements was lost. The government had a comfortable majority of fifty on the second reading. Shortly after the debate, the Home Secretary announced two major amendments to the bill: first, that any child born in the UK who did not acquire British citizenship at birth might acquire it after ten years’ continuous residence, irrespective of the status of the parents; and second, that citizens by naturalisation or registration would be allowed to transmit citizenship to children born overseas in the same way as British-born citizens. These amendments were reassuring to members of the ethnic minority communities, and were welcomed in the Rajya Sabha by the Indian Foreign Minister, Shri Navalsimha Rao. The first amendment was a move back towards the ius soli principle. Some rightwing Conservative backbenchers were angry at the concessions made by the government. Ivor Stanbrook, a member of the standing committee examining the bill, said they showed a contempt for backbench opinion and were a betrayal of government pledges on immigration (The Guardian, 5 February 1981.) After considerable discussion in committee and on the floor of the House, the bill received its third reading on 4 June. It then went to the Lords and returned to the Commons with ninety amendments, all except one of which were accepted by the government, including the controversial Gibraltar amendment. This gave Gibraltarians special access to British citizenship, a concession which was later extended to Falkland Islanders after the war with Argentina. The nationality bill was enacted and came into force on 1 January 1983.

The consequences of the Nationality Act The decision by the government to introduce a more restrictive British citizenship and to phase out the entitlement of Commonwealth citizens to automatic registration for UK citizenship1 caused considerable anxiety among the permanently settled immigrant community – an anxiety that was increased by the fact that the nationality bill was introduced in a context which emphasised more rigorous immigration controls. The result was a huge rise in applications for registration and naturalisation as British citizens. Applications rose from 38 000 in 1978 to 70 000 in 1981 and 96 000 in 1982, despite a large increase in fees, which the government introduced to make the service self-financing. Naturalisation fees rose from £90 in 1979 to £200 in April 1982. The

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fee for those entitled to registration rose from £37.50 in 1979 to £70 in 1982. According to the Select Committee, this produced a notional profit to the Home Office of £6 million in 1982–83 (House of Commons, 1984). The Home Affairs Committee criticised the level of fees, which it felt was unfairly high and deterred some people from applying for citizenship. The government agreed to reduce them, which it did in 1984 (Home Office, 1984). The Home Office was also censured for not anticipating the surge in applications, which resulted in long delays. This was criticised by the Home Affairs Committee in its 1983 report, but even more strongly in its 1990 report, which condemned the incompetence and inexcusable delays of the Immigration and Nationality Department in dealing with registrations and naturalisation applications. This was particularly disgraceful, it felt, in a fee-paying service (House of Commons, 1990). The Home Secretary published a White Paper on 25 October 1982, setting out proposals for changes in the immigration rules made necessary by the Nationality Act. Mr Whitelaw argued that the Act now defined those belonging to the UK, and that all women who were British citizens should have the right to be joined by their husbands or fiancés; in future, all British citizens would be able to bring their husbands or wives or fiancé(e)s into Britain (Hansard, vol. 31, cols. 692–9, 11 November 1982). This was not entirely true, as the spouses or fiancé(e)s would have to satisfy immigration officers that the primary purpose of joining their partner was not immigration to the UK. The opposition criticised and opposed the changes in the rules, arguing that some were too restrictive, while fifty Conservative MPs supported a reasoned amendment tabled by Ivor Stanbrook that they would encourage abuse of the immigration laws through the arranged marriage system (The Guardian, 11 November 1982). The new rules were finally approved by Parliament on 15 February 1983.

Conclusion One of the legacies that Britain inherited from her imperial past was an expansive and liberal form of citizenship. The concept of citizenship was foreign to Britain’s non-republican tradition and the key concept was that of British Subject, but both citizens of the UK and colonies and citizens of independent Commonwealth countries were British Subjects. This meant that once resident in Britain they had full civic, social and political rights. A new restrictive form of British Citizenship, requiring a close connection to the United Kingdom, was not

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introduced until the British Nationality Act 1981. This imperial legacy was reinforced by the postwar efforts by Britain to retain its great power status through the attempt to retain its leadership of the Commonwealth. These resulted in Britain retaining its liberal citizenship provisions during the main period of postwar immigration, 1948–71. This legacy has resulted in a situation where the British response to postwar immigration in terms of citizenship reform has been very different from that of its European neighbours. Postwar immigration to western Europe created a situation in many countries where large numbers of people – mainly migrant workers and their families – did not have the citizenship of their countries of work and residence. They could not enjoy full civic, social and political rights unless they naturalised. However, for a variety of reasons naturalisation rates were very low. These reasons would include the wish to return, not to lose property and inheritance rights, and not to lose one’s previous citizenship and compromise national identity, as well as the difficulties of naturalisation and fear of rejection. Gradually, as it was realised that postwar migration had resulted in settlement, many of the receiving countries relaxed their restrictions on foreigners and liberalised their nationality laws. Sweden led the way in 1974 and has been followed by other Scandinavian countries, Belgium and the Netherlands. In the 1980s France too lifted some restrictions on foreigners, though more recent French administrations have taken a more restrictive position. In Britain, most postwar immigrants had citizenship rights as they were either British subjects or citizens of the Irish Republic who were treated as if they were UK citizens because of the historic links between Britain and Ireland and the needs of the British labour market. The fact that citizens of Commonwealth countries and colonies had citizenship rights did not have adverse consequences for the British political and party systems. For example, they vote overwhelmingly for mainstream British parties. Citizenship and voting rights, however, did not protect them from anti-immigrant agitation and racial violence. Nor did it protect them from the harsh consequences of arbitrary immigration rules and laws. In the postwar period the trend in Britain has been one of tougher and tougher immigration controls aimed at ending immigration from the Third World and the Indian sub-continent in particular. It has also been towards a more restrictive definition of citizenship. This is because the expansive notion of British subject came to be increasingly untenable as most British subjects in the former Empire lost their right

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to immigrate to the UK. Technically, by 1980 some 950 million people could claim to be British subjects, mainly because they were citizens of independent Commonwealth countries who were defined as British subjects under the Nationality Act of 1948. As there was no definition of British Citizenship, all subjects were citizens even though most had no right of access to the UK after the immigration laws of 1962, 1968 and 1971. A new citizenship law was both inevitable and expedient. It was impossible to continue with a situation where most British citizens lacked the fundamental right of citizenship that is the right of entry and abode in the country of their supposed citizenship. It is clear that if the Labour Party had been elected in 1979 it too would have introduced a new British Nationality Act. The British Nationality Act of 1981 did not end the confusion surrounding British citizenship. While there is now a citizenship for those with close connections with the UK which does provide the right of access and abode in the UK, there are also a variety of categories of British citizenship which do not. These include British Dependent Territories Citizen and British Overseas Citizen and British National (Overseas). Moreover, many citizens of independent Commonwealth countries have the right of access to the UK because they are of British descent. Special arrangements also apply to Gibraltarians, Falkland Islanders and some people in Hong Kong. Now that Hong Kong has reverted to China, the British government has announced that it will grant full British citizenship to all the remaining citizens of the British Dependent Territories. The British approach to citizenship has been pragmatic and expedient. It has never been idealistic, though on occasion it has been claimed to be. The concept of personal allegiance to the King was expedient in the seventeenth century as it solved the problem of the allegiance of the Scots, who then had their own parliament. By the end of the nineteenth century, this notion had evolved into that of allegiance to the institution of the Crown rather than personal allegiance to the monarch. The notion of civis Britannicus sum whereby all subjects in the Empire and Commonwealth had a common British citizenship was an expansive and unifying ideal, a legitimation of Britain’s imperial role, and was felt to be needed to hold together such vast and diverse territories. But it was quickly abandoned when the far-flung citizens began to exercise rights that were meant only to be symbolic for them – though they were meant to be real, of course, for people of British descent and British expatriates wishing to return to the UK.

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However, the expansive notion of British subject has aided the integration and acceptance of people from the New Commonwealth. Politicians, governments, the media and other electors have had to take their opinions and needs into account, especially at local level in major urban centres where ethnic minority voters form a large and growing proportion of the electorate. The government can, to a certain degree, ignore the wishes of non-citizen groups like asylum seekers as they cannot back up their protests by votes. But electors are hard to ignore even when they are a minority and Britain’s ethnic minorities are very active in the political process and are becoming more adept at defending and promoting their interests. Note 1 Commonwealth citizens entitled to automatic registration as British citizens had to exercise this right by 31 December 1987; otherwise, they would have to apply for naturalisation on the same basis as aliens.

References British Nationality Act 1981, London: HMSO. Brubaker, W. R. (ed.) (1989), Immigration and the Politics of Citizenship in Europe and North America, London: University Press of America. Commonwealth Immigrants Act 1962, London: HMSO. Commonwealth Immigrants Act 1968, London: HMSO. Conover, P., Crewe, I. and Searing, D. (1990), Conceptions of Citizenship Among British and American Publics: an Exploratory Analysis, Department of Government, University of Essex: Essex Papers in Political Government, March 1990, no. 73. Conservative Political Centre (May 1975), Towards a New Citizenship, Report no. 566, London: Conservative Central Office. Conservative Political Centre (1976), The Right Approach: a Statement of Conservative Aims, London: Conservative Central Office. Conservative Political Centre (1980), Who Do We Think We Are? London: Conservative Central Office. Defoe, D. ‘The True Born Englishman’, in H. Morley (ed.) (1899), The Earlier Life and Chief Earlier Works of Daniel Defoe, London: George Routledge & Sons, 175–218. Dummett, A. and Nicol, A. (1990), Subjects, Citizens, Aliens and Others: Nationality and Immigration Law, London: Weidenfeld & Nicolson. Hansard, Parliamentary Debates, House of Commons. Henderson, R. (1995), ‘Is it in the Blood?’, Wisden Cricket Monthly, June 1995. Home Office (1977), Cmnd 6795, British Nationality Law: Discussion of Possible Changes, London: HMSO. Home Office (1980), Cmnd 7987, British Nationality Law: Outline of Proposed Legislation, London: HMSO. Home Office (1981), British Nationality Bill, Session 1980–1, 13 January 1981, London: HMSO.

Zig Layton-Henry 77 Home Office (1984), British Nationality Fees, Government Reply to the Third Report from the Home Affairs Committee, Session 1982–3, London: HMSO. House of Commons (1984), British Nationality Fees, Third Report from the Home Affairs Committee, Session 1982–3, London: HMSO. House of Commons (1990), Administrative Delays in the Immigration and Nationality Department, Fifth Report from the Home Affairs Committee, Session 1989–90, June 1990, London: HMSO. Immigration from the Commonwealth (1965) Cmnd 2739, London: HMSO. Immigration Act 1971, London: HMSO. Marshall, T. H. (1963) ‘Citizenship and Social Class’, in Sociology at the Crossroads, London: Heinemann. Moran, M. (1989), ‘Introduction’, in V. Vogel and M. Moran (eds), The Frontiers of Citizenship, London: Macmillan. Morley, H. (ed.) (1899), The Earlier Life and Chief Earlier Works of Daniel Defoe, London: George Routledge & Sons, 175–218. Powell, E. (1968), speech delivered to the Annual Conference of the Rotary Club of London, Eastbourne, 16 November 1968, in B. Smithies and P. Fiddick (1969), Enoch Powell on Immigration, London: Sphere Books. Roche, T. W. E. (1969), The Key in the Lock, London: John Murray. Sherwood, M. (1985), Many Struggles: West Indian Workers and Service Personnel in Britain 1939–45, London: Karim Press. Smithies, B. and Fiddick, P. (1969), Enoch Powell on Immigration, London: Sphere Books.

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Part II Racism and Racial Inequality

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4 Racism and Racial Inequality: the British Case in a European Context Malcolm Cross

The objective of this chapter is to offer a critical evaluation of the British experience in a European context. The argument is in three sections. The first sets out an interpretation of the issue, which differs in some important respects from conventional views in the academic literature. There are two major differences which can be highlighted from the outset. The first is the denial that all racial inequality is the result of racism. The second is to deny that government intervention has been as critical as many contend in shaping the current situation. The latter is not intended to deny the independent importance of policy; it is simply to suggest that governments at both local and national levels have been largely reactive. They have responded to pressures generated elsewhere, rather than pioneered a distinctive line in determining outcomes. Their secondary role, however, is not without importance but it does act as a corrective to more ambitious assumptions about the role of policy. The second section develops the implications of this view in the British case. It points in particular to the contradictions in government policy that are seen more clearly in the light of the first section. The third section of the chapter tries to knit the first two sections together by focusing on two major sections of the British minority population, namely those of Caribbean origin and British Muslims. The conclusion is that not only has British policy proved partial in practice but that it has always served to generate separatism. Perhaps more important still, the tendency for the emergence of separate agendas for action has then provided a ready-made reason for inaction. It is argued, moreover, that ‘anti-racist’ strategies have been ineffectual and of little relevance in combating racial inequality, largely because they have assumed that it was synonymous with racism, and even then a rather one-sided view of it. 81

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Racial inequality Racial inequality is a form of social division sustained by three separable pillars. One is racism itself, an historically determined set of mythologies which serve to legitimate and guard entry to privilege and social esteem. The second is social class, or that system of vertical division resting upon access to income through employment, to wealth and the enjoyment of particular lifestyles. The third is social space or that structure of opportunities which is moulded by geographical location and which provides the arena in which everyday life is lived. If these are indeed separable pillars sustaining racial inequality, it follows that positive changes in one direction may be undermined by negative changes in another. Indeed, I shall argue that this has been the case in Britain, where the potentially beneficial effects of legislation, however muddled and self-contradictory they may have been, have to be seen in the context of other social inequalities which have tended to widen the gulf between ethnic minorities on the one hand and majorities on the other. In order to make this argument clearer, I shall look in turn at each pillar sustaining racial inequality. Racism In Britain, but to a lesser extent in continental Europe, racism has been viewed in what I have earlier called a ‘uni-dimensional way’ (Cross, 1992). What I mean by this is that, notwithstanding wide differences in theories of causation, most commentators have assumed that racism is about how one part of society treats an undifferentiated ‘other’. There is sometimes recognition that treatment itself may be intentional or purposive – or that it may not – but there is not usually an acknowledgement that the theories steering processes of closure and exclusion contain separable strands of thinking. Historically, there are three main appeals contained in racist theory, although in the British case peculiarities of history have meant that only two have been centrally relevant in the last two decades. It is widely and rightly recognised that racism must contain an implicit or explicit deterministic theory; a mythological foundation that legitimates and rationalises subsequent actions. Different forms of racism are thus founded upon separable deterministic theories. The three are, first, a notion of innate or biologically determined proclivity; second, a concept of coherent and self-generating cultural difference and, third,

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the identification of the archetypal ‘stranger’ or person whose interests and loyalties lie elsewhere. Of course, in practice these three are often confused and one particular group may come to bear the burden of all three. It is important to identify them separately, however, because they possess different properties. Thus appeals to biological notions of inferiority are especially resistant to change while, at the other end, ‘stranger’ theories are difficult to sustain over time; they carry with them the seeds of their own destruction. In Britain, the latter type of theory was mobilised during the period of postwar migration but fell away quickly in the light of universal citizenship rights and the realisation that migrants were an integral component of British society (Patterson, 1964). By contrast, cultural theories are remarkably durable, but what is crucially important is that they imply a different logic of exclusion from the other two. For example, with this variant of racism, there is no necessary denial of competence in cultural minorities by dominant majorities; only that integration must be accompanied by separation and self-containment. In making these distinctions, it is very important to emphasise that this does not imply a judgement over the consequences of these different mythological roots. I am not saying that one type is less or more racist. I am saying, however, that appeals to these different theories and forms of legitimation may have different consequences for the groups whose presence is identified by them. For example, the nature of the perceived threat will differ. Theories of biological capability do not normally involve a perception of the imminent subversion of cherished values. Victims of this type of exclusion are typically perceived as a behavioural threat justifying policies of containment and control by official agencies. By contrast, cultural theories do identify difference as threatening to sacred values; in this case, state agencies are frequently defined as having the task of softening the impact of this threat by recognising difference and providing (minimal) institutional support for its maintenance. Under certain conditions, namely when majority communities feel that little is being done to give substance to their claims to advantage, it is all too easy for this type of exclusion to lead to confrontation between ‘plural’ sections of society. So called ‘racial violence’ is largely of this type. Indeed the interaction between minorities and majorities is often shaped by perceptions on the part of the latter of a threat from groups perceived as cunningly competent. Antisemitism is, of course, the archetypal case.

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Social class It is rarely denied that social class has a bearing on the fortunes of ethnic minorities, but it is less common to see this as a distinctive support for continuing racial inequality. This is partly the consequence of the period when social theory was heavily influenced by Marxism (Miles, 1982). In this approach, social class was not looked at as a separable form of social division but as the form underlying others. Moreover, the logic of Marxist theory tends to both reductionism and to the argument that non-class forms of inequality eventually become vestigial. Unsurprisingly, given the overwhelming evidence on the reproduction of racial inequality and the role of white labour organisations in its maintenance (Duffield, 1988), these claims have tended to be countered by equally assertive denials. Thus British theory, at least, has been polarised in an unproductive debate between ‘class’ and ‘race’ theorists. The empirical analysis of racial inequality has suffered greatly thereby. Indeed this is one major reason for the unsustainable elision between discrimination theory and theories of racial inequality. The central argument for the salience of class divisions as a separable buttress of racial inequality can be expressed in terms of two main propositions. The first is that, given the empirically demonstrable resilience of class divisions, the initial incorporation of migrants as a low-paid, replacement labour force will have long-term effects, regardless of discrimination. These effects will be manifest in both economic and social terms. Put another way, migrant labour has a particular relationship to the labour market, and to productive relations in general. These are paralleled by social relations in terms of housing, environmental conditions and the quality of life. This will be true even in countries where class divisions are more fluid and less rigid than in the UK. With the benefit of hindsight, it now possible to see more clearly that migrant labour represented a stage in the evolution of manufacturing industry in western Europe. Migrant labour was used to sustain profitability and prosperity in the period before the transition to global production, sectoral specialisation and geographical concentration. It is now apparent that future prosperity will depend not upon the local costs of manufacturing production but upon specialisation in tertiary services, knowledge-based design and information services. This is having a profound effect upon class divisions (Esping-Anderson, 1993). In some accounts at least, the structure is becoming transformed from a wide-based pyramid into an egg-timer shape in which the bottom section is itself divided into a service proletariat and an ever growing

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sector of non-workers. Former migrant labourers are deeply affected by these changes, regardless of the degree to which they may be discriminated against on racial grounds (Sassen, 1996). Changing cities Social scientists have been slow to accommodate what could be called the increasing ‘spatialisation’ of society. It has always been the case that industrial prosperity, whether market-based or not, has had spatial implications. The transitions in the eighteenth and nineteenth centuries to industrial society led to a marked shift in the fortunes of towns against rural regions. As far as minorities are concerned, however, social scientists have noted their concentration in urban areas but rather than consider what this meant in terms of racial inequality, they have been preoccupied with other relationships to ‘white’ society. Thus the literature is overwhelmingly concerned with the question of ‘segregation’ from white neighbours. These concerns are based on the liberal assumption that low levels of segregation are good for ‘race relations’ in that they improve the quality and quantity of interactions across racial divisions. The issue which is becoming of increasing importance is not segregation defined in this way. Rather it is the issue of concentration itself. If industrial societies are becoming increasingly ‘spatialised’, in the sense that prosperity and poverty are becoming overlain with geographical significance, then what matters is the proportion of a particular group in areas of decline and social exclusion. Put at its simplest, changes in the class structure mean that those who came to labour are now much less likely to be so doing; if those who migrated are now locked into areas of regional and urban decline then spatial exclusion joins social exclusion as a buttress to their continued inequality (cf. Massey and Denton, 1993). In fact changes within cities are not wholly negative for ethnic minorities. In general terms urban populations have declined faster than jobs with the result that new opportunities have appeared, particularly for entrepreneurs in petty retailing and wholesaling. These opportunities have occurred throughout the cities, in areas of very low prosperity and more fortunate zones within suburbs. Where minorities have succeeded in relocating in such areas they have been better placed to pursue these opportunities with the result that some major cities now reveal a marked ‘ethnic division of labour’ with major consequences for economic divisions (Cross and Waldinger, 1992).

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The dynamics of racial inequality This sketch has had two main purposes. The first is to challenge the assumption that racism alone determines racial inequality. The second is to put in a plea for a dynamic model, in the sense that western societies are experiencing economic and social changes of fundamental significance to all minorities, although not all may be affected equally by them. If racism is multifaceted, for example, then some groups will be constrained in some ways and not others. If class divisions are in the process of change then how some groups have been able to exploit access to social mobility options will have an important effect on their future. If some have, similarly, been able to move out of regions or areas of decline then this too will have profound effects on their future position. One additional point is also highly pertinent. The three pillars of racial inequality that have been briefly outlined are, of course, interrelated in practice. I have emphasised their autonomy in order to make it clear, for example, that anti-discrimination policy alone will never produce racial equality, but this is not intended to suggest that one form may not influence another. For example, racism has a remarkably powerful function in legitimising or making ‘natural’ what is actually occurring for other reasons. For example, if some communities become heavily concentrated in urban areas undergoing progressive decline, then appeals to racist theory can be used to ‘explain’ policies of containment. Moreover, evidence from the United States suggests that the demographics of urban decline are themselves highly influenced by racial mythologies. So called ‘white flight’ is a major factor in progressive urban concentration (Massey and Denton, 1993). In the second section of this chapter I turn to examine British policy itself in the light of the foregoing argument.

British policy Whether by commission or omission, most governments pursue some sort of policy on all three areas outlined above. The British government has clearly done so, but not necessarily with a consistent purpose. In other words, policies in one field may pull in opposite directions from those in another. In fact in the British case, the tensions have been even more profound since policies which are specific to the ‘racial’ part of racial inequality have been contradictory. These can be seen from an inspection of the major initiatives over the last two decades.

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The 1976 Act In offering any appraisal of the 1976 Race Relations Act, however brief and rudimentary, it is first necessary to recognise both the limits and the possibilities of law itself. In addition to well-made arguments about the individualising properties of British law, it is also true that it focuses on differential treatment. If racial inequality is only partially shaped by the actions of individuals or institutions, it can only partially be remedied by changes wrought to those actions. On the other hand, law always has an exhortatory effect, the more so if it is paralleled by current morality. What the law proclaims is therefore not without importance. The 1976 Act operates with a restrictive concept of discrimination based on the first and third theories identified above. Section 3, for example, defines the ‘racial grounds’ which qualify in outlawing discrimination as ‘colour, race, nationality or ethnic or national origins’ (Race Relations Act, c74, section 3). At first sight this suggests an acceptance of all three forms of racist theory but in fact ‘ethnic origin’ is not a satisfactory synonym for ‘ethnicity’. This is most obvious in its exclusion of religion as a ground for discrimination (Modood, 1993b). In practice, therefore, appeals against unequal treatment under the Act are likely to be most successful in cases where physical appearance is the basis for differential treatment. Most minorities can be affected in this way, so to this extent the Act is of potential benefit to them, but is bound to be less relevant in circumstances where ethnic identity is founded upon a set of values which the Act fails to identify as grounds for differential treatment. Tariq Modood (1993b), for example, has argued that this is particularly important in the case of British Muslims. By the usual socio-economic measures of disadvantage Muslims are the worse-off groups, and yet, unlike religious groups such as Sikhs and Jews, they are not deemed to be an ethnic group and so are outside the terms of existing anti-discrimination legislation. One consequence of this is that British policy has seen court-based contests over which groups are to be considered as having an identifiable ‘ethnic origin’ and which not (Banton, 1989; Cashmore, 1989). It is well known that the British legislation makes provision for ‘indirect’ discrimination, or differential effects that are a consequence of decisions motivated by non-racial factors.1 In fact this part of the legislation has been largely counter-productive. In the first place it has proved very difficult to sustain a case under ‘indirect’ discrimination clauses, but this is not the main problem. It has also had the effect of

88 Challenging Racism in Britain and Germany

individualising what are structural changes. For example, if a firm chooses to relocate its production from Bradford to Bournemouth, or move (more improbably) from clothing to computers, it will probably have a profound effect on Bradford’s Muslim population. But it is inconceivable that the 1976 Act could be used to oppose these changes, not simply because they might be thought desirable or inevitable on economic grounds, but because the actions of the firm are thought to be so far from the ‘individual treatment’ model embodied in the Act. Thus what was once considered one of the strongest points of the British legislation has proved in practice one of its greatest weaknesses. The Act appears to recognise other sources of inequality but without specifying what these are. Moreover, they are assumed to lie in discrimination, which is defined in terms of individual treatment, when in fact the inequalities that have grown apace in the last two decades have sprung from other sources. The Commission for Racial Equality The Commission for Racial Equality is the chief custodian of the Act and its existence is as potentially important for the elimination of discrimination as the provisions of the Act itself. This is because its first and second duties go well beyond the legislation and specify a promotional function of opposing discrimination and furthering equality of opportunity and ‘good relations between persons of different racial groups generally’. More than a decade ago, I published an essay on the Commission which was intended to be supportive during a period when it was under heavy fire for apparently doing so little to prevent or ameliorate the conditions which led to the urban disorder of 1981. I would not wish to dissent now from the general conclusion that I reached then: [The CRE] is an organisation which has too much to do because no other agency in central or local government is prepared to contribute to a co-ordinated policy. It has minimal resources because the promotion of racial justice appears to be low on the list of central priorities. (Cross, 1982: 86). I went on to argue that it was a sad reflection on the short-sightedness of central government that ‘the prospects of new initiatives and new purpose (have) become brighter only in the glow of inner city arson’ (1982: 86).

Malcolm Cross 89

Since then the Commission has doggedly pursued the implementation of the Act, often receiving at best surly acceptance in the media for its pains. It has had to mount a largely internal struggle to try and stem the flow of government legislation and administrative initiatives with damaging effects on ethnic minorities, while at the same time being the victim of real reductions in revenue. The Commission’s position is particularly constrained by its confinement to a ‘discrimination’ model of racial inequality, with the result that it has proved most ineffectual when attempting to combat the widening gulf of inequality deriving from other sources. The position of most ethnic minorities in Britain, and some in particular, worsened considerably in the late eighties and early nineties, but not largely because discrimination grew. The result is that the Commission has had to struggle hard to hold on to a reputation for relevance. Section 11 of the Local Government Act If the 1976 Act incorporates an implicit theory of discrimination which locates its aetiology in classical racism and xenophobia, Section 11 of the Local Government Act is based on quite different assumptions. This clause, designed to provide a framework for the statutory powers of local government, locates racial disadvantage in cultural difference. It calls for the provision of supplementary services at the local level which meet ‘special needs’. Clearly ‘special needs’ in this context can be of two types. They can aid assimilation (e.g. language teaching) or sustain pluralism (e.g. support cultural festivals). By and large pressure from the centre has been applied to further the former while applications from community groups have been more interested in the latter (Cross, 1998). What is important, however, is that Section 11 has proved increasingly difficult to mobilise against racial inequality. There were very determined attempts to do this but each fell by the wayside in the face of equally determined central government hostility. The most famous case was that of Brent in north-west London where central government intervention came very close to undermining the last vestiges of local autonomy (cf. Cross, 1991). What is not normally recognised is that the contradictions between the 1976 Act and Section 11 played a major role in splitting ethnic minority communities. African-Caribbean politicians and community leaders in Brent, for example, were leading advocates of anti-racist strategies in recruitment and service delivery. In promoting this line they fell foul of central government in a major way, but also they alienated the Asian sections of the borough whose

90 Challenging Racism in Britain and Germany

concerns were not ‘anti-racist’ in the same way. For them the issue was one of community coherence and the use of local opportunities to enhance cultural solidarity. The provisions made possible by Section 11 of the 1996 Local Government Act were one of the main ways of achieving these goals (Cross, 1998). Social inequality Average incomes in the UK grew by 30 per cent in real terms over the decade from 1979. There was a marked difference, however, in the probability of a household enjoying this real rise according to its overall income level. The real income of the bottom decile increased by only 2 per cent over the decade before housing costs were deducted, while after housing had been accounted for the bottom tenth actually experienced an average fall of 6 per cent in their real incomes (DSS, 1992: 28). This deterioration in the overall income position of the poor is consistent across different family types. Taking income after housing, and including all income-related benefits, the lowest decile of income receivers acquired approximately 44 per cent of average income in 1979, whether they were single adults or couples with or without children. By 1988/89 this proportion had fallen to 32 per cent of the average for each of these three family types. The next decile up received 56 per cent of average income in 1979 and 44 per cent a decade later; the third decile enjoyed 65 per cent in the former year and 54 per cent in the latter (DSS, 1992: 63). This growing inequality in incomes was accompanied by pronounced falls in real income for the poor. Real incomes fell dramatically over the decade for all families at the bottom end of incomes, but in particular the effect was more pronounced for what had hitherto been thought of as less vulnerable groups. The data suggest that couples with children and single people or couples without children were those hit the hardest. When housing costs are deducted the falls at this end of the income spectrum are greater. Major falls in real income were experienced by the poorest fifth regardless of their economic position. Here again, being supposedly ‘normal’ (couples, with at least one full-time worker) was no insulation against a major decline in real income. Of course, this is not the same as saying that either family type or economic position are irrelevant in determining likely income. Some family types (pensioners and single parents) are more likely to be poor, as are some economic groups (e.g. the unemployed). It is simply to say that other groups, when they were

Malcolm Cross 91

amongst the poor, were not insulated from the general worsening of relative conditions for all those at the lower end of the income spectrum. The single most important feature of the decade 1979–89 was the changing shape of income distribution. Both before and after housing costs were met, the distribution showed a marked rise in the numbers receiving less than approximately £75 per week, an equally marked fall in those on middle incomes between £75 and £200 per week, and a sharp rise in those receiving over £200 per week (at 1992 prices) (DSS, 1992). Of these changes to the shape of the income distribution, the most important is the movement of significant proportions of the middle income receivers to the higher level, both as a result of increased remuneration and tax reductions. This has occurred without any beneficial effect to those at the lower end. Inevitably the movement has increased the proportion of the population with ‘below average income’ as ‘average income’ itself has moved upward in real terms (DSS, 1992: 154). The negative effects at the bottom end of the income distribution are not, however, insignificant. After housing costs were met, for example, those at the very bottom of the distribution (zero or negative incomes) grew from 0.2m in 1979 to 0.5m in 1988/89 (DSS, 1992: 154–5). The increasing numbers of those who are poor was proportionally much larger at the lowest end of the income distribution. Family type and economic position clearly make a difference to the probability of being poor. Over the decade 1979–89, this relationship altered sharply. If we take the normal division applied in the European Community of half average income as the dividing line, then we can see a dispersal effect as vulnerable family types have become more and more likely to slip into poverty. As we saw above, on this measure, the number of individuals in poverty rose 136 per cent from 4.4m to 10.4m over the decade 1979–89. The data reveal that whereas only 9 percentage points separated different family types in 1981 (from 3 to 12 per cent), by 1989 this had risen to 35 points (from 8 to 43 per cent). With the dramatic worsening of the economy after 1989, it became highly probable that more than half of those in the worstplaced family type (a single person with children) fell below the poverty line when it is defined in this way. These figures are before housing costs are deducted. After housing costs are met, the position is clearly worse for the more vulnerable since, even in 1989, one in two single parent families received less than half average income, even taking account of benefits. It is particularly striking that the data suggest a dramatic worsening of the position after 1987 (Cross, 1993d).

92 Challenging Racism in Britain and Germany

What all this amounts to is that poverty has massively increased over the last decade. Moreover, it has become ‘normalised’ in the sense that it has increasingly affected the lives of the able-bodied of working age, among them a increasing number of ethnic minority people in Britain’s cities (Amin and Oppenheim, 1992). In other words, the widening of social class divisions and the spread of poverty into the ranks of the able-bodied of working age has had a disproportionate effect on ethnic minorities, particularly those who have been unable to use either educational or entrepreneurial routes out of low status, low income positions. Urban strategies Urban policy in Britain contains a profound paradox. On the one hand the Urban Programme, which dates from May 1968, was announced immediately after the infamous ‘Rivers of Blood’ speech by Enoch Powell that foresaw violent confrontation as the outcome of a minority presence in Britain. The proportion of ‘New Commonwealth Immigrants’ was always a significant variable in identifying areas of urban need. On the other hand, the Department of Environment, which has steered urban policy from that day to this, has steadfastly eschewed identifying racial equality as a policy goal. Indeed, central government grants to local government have tended to be reduced unevenly with the effect that more has been lost from inner urban boroughs with high ethnic minority proportions than has been gained by programmes of urban renewal and regeneration. For example, central government has reduced the grants to local authorities which enabled them to build social housing. The greatest falls in house building have been in those areas where ethnic minorities are concentrated. In Greater London the percentage fall in house building was 70 per cent between 1977 and 1990 and in the West Midlands it was 53 per cent (PSI, 1992: 57). This compares with a national fall of 39 per cent. Not only have areas in which ethnic minorities live been disproportionately affected by cuts in public expenditure, but also where specific policy developments occurred, they have been gradually switched from ‘inner cities’ with high ethnic minority concentrations to other parts of the country. For example, the ‘traditional’ Urban Programme was an important part of central government funding to ‘inner cities’ in 1986/87 when it accounted for 53 per cent of expenditure. By 1991/92, this programme had declined to only 27 per cent of ‘inner city’ budgets (PSI, 1992: 74). Moreover, those regions identified as ‘deprived’ in 1980/81 with high levels of ethnic minorities were the most likely to

Malcolm Cross 93

see the largest shift in funds. Thus the London Borough of Hackney, with the fourth highest proportion of ethnic minorities in Britain in 1991 (33.7 per cent) and the second highest level of ethnic minority unemployment (29 per cent), saw the greatest fall in its grant per head under the Urban Programme, from £72 in 1980/81 to £23 in 1989/90. Similar falls were evident in other London Boroughs and also to a smaller extent in Birmingham, Manchester and Liverpool. In place of the Urban Programme funding, Britain developed Urban Development Corporations, which were non-elected agencies designed to provide economic regeneration in partnership with the private sector. These came to account for just under 60 per cent of total funds and, with the exception of the London Docklands area, were located outside zones of high ethnic minority concentration. Even within the Docklands area, research to date has suggested that local people – of any ethnic origin – have not proved to be major beneficiaries. There is an important sense, therefore, in which central government interventions have at best had little effect on the generation of the ‘underclass’ and, at worst, have helped bring about the conditions in which such forms of social exclusion have grown. Cities have figured less prominently in public expenditure and that which there has been has swung away from zones and programmes which might help ethnic minorities.

The case of the Caribbean British It is possible to demonstrate that the three forms of racial inequality outlined in section one have had a particular salience for describing the fortunes of Britain’s population of Caribbean origin. First, they have been the object of a biological theory of racism which has generated an apparently immutable stereotype of an underachieving, criminally inclined and feckless minority increasingly destined to live beyond the pale of civilised society. Perhaps the clearest measure of this image is through the actions of the British police, whose disproportionate focus on young Caribbean males has helped to ensure that this group is heavily over-represented in the criminal justice system (Fitzgerald, 1993). The processes are clearly complex and relate to behavioural manifestations amongst this group as well, but there is some evidence to suggest that the targeting of Caribbean males has a long history. Certainly, they are more likely to be stopped, and if stopped subsequently searched, than are others (Figure 4.1).

94

Police Searches after Stops (1987/88)

Police Stops by Ethnic Group (1987/88) Per cent stopped 20 15 10 5 Stopped 1+ Stop✱

White 15 12

Asian 14 16

Afro-Car 20 19 Ethnic category Stopped

Traffic Pedestrian

Per of stops resulting in search

White 9 20

Police stops and searches, 1987/88

Afro-Car 34 36

Asian 14 25

Ethnic category

1+ Stop✱

Source: British Crime Survey (Skogan, 1990) ★ % of those stopped, stopped again

Figure 4.1

40 35 30 25 20 15 10 5

Traffic Source: British Crime Survey (Skogan, 1990)

Pedestrian

Malcolm Cross 95

This stereotype is not, however, the preserve of the police. It is found in the courts and in prisons themselves (Cross, 1992). Nothing better illustrates the bifurcating effects of racist imagery than the differential treatment in the criminal justice system. Indeed one of the finest studies of the court system in Britain found, inter alia, that official decision-making tended to magnify the differentials found in the occupancy of prisons. Asians, for example, are represented in British prisons at a level which could be predicted from their demographic profiles, while Caribbean British people are heavily over-represented. The report by Roger Hood (1993) and his associates showed that court processes exacerbated this tendency. As far as social class effects are concerned, the evidence is equally compelling. Two-thirds of the Caribbean population in the UK live in Greater London, particularly in the ‘inner city’ (Figure 4.2). Their employment and economic position has been dramatically affected by changes to the structure of jobs in the capital. Ethnic minorities are disproportionately strongly represented amongst London’s unemployed compared to a decade ago, both because they are more numerous and because they appear to have been disproportionately affected by the downturn in economic fortunes affecting the capital at the end of the decade (and subsequently). Job losses between 1960 and 1983 are estimated for Greater London at 820 000 jobs, while a modest revival occurred after that date (Buck et al., 1992: 82). Again, however, the greatest improvement occurred outside Greater London itself in the surrounding districts of the south-east. Industrial restructuring brings about a collapse in the availability of unskilled jobs in the formal economy and as it does so a growing ‘mismatch’ opens up between those with the certified skills that are in demand and those without. It is this phenomenon which William Wilson (1987; 1989), John Kasarda et al., (1992) and others have referred to in identifying ‘the underclass’. In 1971, there were over one million jobs in manufacturing in Greater London, many of them unskilled or semi-skilled. By 1989, this number had fallen to 0.4m (Buck et al., 1992: 83). Over the same time period, the jobs available in finance and producer services had risen from 520 000 to just under 800 000. Service jobs have grown especially in Outer London and in the regions beyond. As Nick Buck and his colleagues summarise the position: the share of the goods production and circulation sector in Greater London employment fell from 45 per cent in 1971 to 26 per cent in 1989 … By contrast the financial and producer services increased

96

Ethnic Minority Population in Outer London in 1991

Ethnic Minority Population in Inner London in 1991

Proportion of total (%)

Proportion of total (%) 16 14

8 13.4

6.5

7

12

6

10

5

8

4 5.2

6 2.8

2.9

4

1.2

2

4.8 3.8

3 1.4

2

0.3

1

0

0 Black

Indian

Source: Census 1991

Figure 4.2

Pakistani

Black

Bangladeshi Other

Source: Census 1991

Ethnic minority population in Inner and Outer London, 1991

Indian

Pakistani

Bangladeshi Other

Malcolm Cross 97

their share of Greater London employment from 13 per cent to 23 per cent (Buck et al., 1992: 87). Associated with this transition went a gradual relocation of employment prospects from the centre outwards. The Caribbean-descended population has not been able to follow either the jobs exodus or the opportunities represented by the changes in the type of job on offer. The result is that they have become particularly prone to exclusion from work wherever they are located in the city (Figures 4.3 and 4.4). In other words, their position is not one of ‘inner city’ isolation, although that may well be the lot of some; rather, it is one of being increasingly shepherded into an ‘underclass’ where prospects of becoming employed are minimal. Caribbean peoples are not disproportionately excluded from employment because they live in inner areas. They are, however, disproportionately affected by ‘inner city’ decline, because that is where the majority of them live. The result is that they are heavily under-represented in higher level employment when compared with others (Figure 4.5).

Unemployment rate (%) 50 40 30 20 10 0 25 and over