Black lives matter, yet the erasure of Blackness has always been a core feature of the law. To suggest that so-called ethnic monitoring information ought to be routinely recorded in public judgments raises complex ethical questions. Many will immediately think one of those questions relates to the relevance of Blackness. It does not. Blackness is always relevant, as a socially constructed marginality distinct even from other forms. Statistics that demonstrate disproportionate monitoring and mistreatment of Black people at every stage of the criminal justice system make the information indelibly relevant. It is relevant even where grounds do not exist to make legal arguments, whether under the Equality Act or by using article 14 ECHR in conjunction with another fundamental right. The ethical complexity arises from those published judgments (once the information is added) inadvertently becoming part of the architecture of monitoring. Monitoring has existed for far longer than the modern algorithms which usually spring to mind when discussing the term. Litigation is rarely a choice, except for the super rich. Black litigants, however, often find themselves involved in litigation either to achieve survival, whether literally in the immediate sense, or to free themselves from the death-machines that are Her Majesty’s Prisons, and related settings. They will have been frequently asked to record their racialised status, whether during prison reception processes, or on legal aid applications. The data collected demonstrates, without question, that they rarely see any fruits from this monitoring. Why should court judgments be any different? It may well assist sociologists in their analysis of the law but, again, so what?
Lord Justice Singh, in his 2018 Sir Mota Singh Memorial Lecture, entitled Racial Equality and the Law, included citations of popular authors, from David Olusoga to Afua Hirsch among references to court judgments from majority white common law jurisdictions. He uses this international backdrop to describe the history of legislation aimed at racial equality in the United Kingdom. Even with all of the progress detailed therein, the elephant of continued inequality crowded the room, as lawyers toasted progress. In her essay The Master’s Tools Will Never Dismantle the Master’s House, originally recorded as comments made at a conference in 1979, Audre Lorde said:
“…I stand here as a Black lesbian feminist, having been invited to comment at the only panel at this conference where the input of Black feminists and lesbians is represented. What this says about the vision of this conference is sad, in a country where racism, sexism and homophobia are inseparable”.
We often like to exceptionalise what is happening in the US. Yet it is in the US where intersectional analysis (as alluded to by Audre Lorde above, 10 years before the term was born) was first used to critique courts’ separation of racism from other forms of discrimination. The term intersectional appears in the Oxford English Dictionary to describe its creator Kimberlé Crenshaw’s theory. It is conspicuous in its absence, however, from the vocabulary of our courts. As those same courts have a record – at a rate which exceeds those in the US – of sending Black people to prison, and adjudicating on matters unrelated to the flourishing of Black communities, alienation is inevitable. The master’s tools will never dismantle the master’s house. Yet the equal rights champions who see toxic institutions like the police as being the solution to sexual violence seem to have little regard to how those institutions are a symptom rather than a solution. It is those same champions that now tell us that Black Lives Matter.
Whilst, in one sense, it is good to see lawyers begin to reflect on “the extent to which Britain was involved in (and benefitted from) slavery and the slave trade“, analysis of the relationship between the past and and the present is a far more distant prospect among us. How the very existence of the law as we know it has always been a violence to Black people. From forcing them to prove their personhood, whether in the 1700s to distinguish them from property, or in the modern day, as they are frequently called upon to do, to be seen other than as harbingers of risk. As navel-gazers across the world pontificate on the availability of habeas corpus to non-humans, we should pause to think how rarely that ‘great writ’ is available to people being so rampantly excluded from flourishing in our society. The truth is that we have never learned to recognise the humanity of those we have othered throughout history.
My experience, nonetheless, is not of people I act for from those communities, and thinkers I learn so much from, suggesting we down tools and do something else. That does not prevent me from taking calls to abolish the law, as one person has put it, seriously. But against a backdrop of such persistent mistreatment, in the criminal justice system and beyond, of Black people in this country, we should revise our own roles in the system. Calls for more prosecutors, better prisons and more bobbies on the beat are being exposed within the Black Lives Matter movement as being intellectually bankrupt. Theories of intersectionality and abolition will be completely alien to many within our profession. If we continue to nourish ourselves from the feelings of a job well done, whilst inequality flourishes, our victories will be Pyrrhic.
As universities across the world undertake to introduce Black studies, and literature from other disciplines, into their curricula, this has drawn – entirely justifiable – laughter and indignation from within the ranks of those scholars who have deep knowledge, but have been prevented from holding deserved positions in the academy. Our own profession has been disappointingly weak at looking to the failures when it comes to discrimination within its ranks. It took a young Black paralegal – speaking about the profession’s response to the removal of William Colston’s statue – to drive this home in recent weeks. What we can do to foreground expertise that the judiciary, largely drawn from especially privileged ranks of people, have demonstrated no appetite for? Even Lord Justice Singh was exasperated by the task:
“Some statistics which have been published by the government may be of interest in this context. UK households were divided into five equally sized groups or “quintiles”, based on their income. The average household income ranged from £9, 100 in the lowest quintile to £45, 900 in the highest quintile (after housing costs were deducted). Over half of households from the Asian, black and other minority ethnic groups fell into the two lowest income quintiles. 42% of white British households fell into the two highest quintiles, this being the highest percentage of all ethnic groups. Only 20% of black people fell into the two highest quintiles, this being the lowest percentage of all ethnic groups. The reasons for these differences in income are complex and well beyond my expertise and the remit of this lecture. However, such differences of income may form one of the structural features of our society which I have mentioned”.
We must not be surprised if the alienation I mention has spread to the ranks of the scholars best placed to bridge the gap between the expertise within the judiciary, and that available from many many decades of writing about Black lives. However averse courts may appear, lawyers must not be complicit in suppressing this expertise. I do not write here to profess the kind of expertise needed to understand racism, and anti-blackness, in all the requisite ways to prevent it. It has indeed been very disappointing to see fellow lawyers rush to convene events, and crowd online space with their own takes on the last few weeks, without reflecting on how the law might be complicit in the harms we see, who might be better placed to analyse things, and on the trauma caused by transient and performative solidarity. We need to learn before we can teach.