Gracie Mae Bradley: Anti-racism in the courtroom? Reflections on strategic litigation and policy-making

Make Racists Afraid Again
By Ted Eytan, CC BY-SA 2.0

Multiple consciousness is a method that Mari Matsuda urged lawyers to adopt in her 1989 speech and paper When the First Quail Calls: Multiple Consciousness as Jurisprudential Method. “[N]ot a random ability to see all points of view, but a deliberate choice to see the world from the standpoint of the oppressed.” It’s this perspective that Against Borders for Children – a coalition of parents, teachers and campaigners – adopted when the Department for Education began requiring schools to collect children’s nationality and country of birth data through the termly school census from October 2016.

Deliberately viewing the data collection from the perspective of those targeted by the government’s brutal policies to create a “hostile environment” for migrants made the danger of such sensitive personal data being entered into a database accessible by the Home Office urgent and palpable. Some in the children’s and migrants’ rights communities were more circumspect, expressing their support for the collection of such data to the extent that it might be used to assess children’s attainment or better allocate resources to them. All of this despite the facts that “English as an Additional Language” needs have been assessed by a separate metric for years, and that in any event, funding per pupil will have been cut by 8% in real terms by 2020. Others in the NGO community told us outright that we should trust the government, and avoid making a fuss.

But our decision was ultimately a sound one. In the months that followed, it emerged that nationality data was not being collected for any educational purpose, but as a compromise between the DfE and the Home Office on harsher school-based immigration enforcement measures that Theresa May had wanted to introduce through the 2015 Immigration Bill – checking children’s immigration status in schools, and allowing them to refuse places to the children of undocumented parents.

When the nationality data collection began, unbeknownst to parents, an agreement was in place to hand it over to the Home Office for immigration enforcement purposes – an agreement amended later in October 2016 in response to the outcry generated by #BoycottSchoolCensus. And when that agreement was released the following December, it contained details of a chilling, secret programme. In operation since 2015, it provided for data from the pupil records of thousands of children – namely their home addresses – to be handed to the Home Office for immigration enforcement on a monthly basis. It’s the first of several agreements to come to light that have gradually revealed that data collected by teachers, homelessness workers, NHS staff, employers, bank clerks and DVLA staff is routinely acquired in bulk by the Home Office to support its efforts to remove people from the country. So much for that mantra of the well-meaning: “all data is good data, and more data is better.”

As momentum coalesced behind the campaign’s key calls – that parents should exercise their right to refuse to disclose their child’s nationality or country of birth; and that the DfE should stop requiring schools to collect it – several members of the public, including some lawyers, contacted us to ask incredulously why ABC hadn’t launched a legal challenge. We had been gently approached by a law firm early in the campaign, but the £10 000 that we would have been required to raise through crowdfunding felt prohibitive to us, an unfunded group of fewer than ten people, all of whom had work and other responsibilities to juggle. But we also had reservations about the sustainability of a win through strategic litigation that wasn’t backed up by wider public and political support.

In several years supporting migrants to navigate the UK’s byzantine immigration system, I have seen innovative strategic litigation bring much-needed respite from several fundamentally unjust and structurally discriminatory policies. The Detained Fast Track was closed following a series of damning judgments issued as a result of expertly fought challenges brought by Detention Action. Medical Justice and Duncan Lewis have successfully litigated to establish that in the context of immigration detention, torture does not need to have been perpetrated by a public authority for an individual to be accepted as a survivor of torture [Medical Justice & Ors v SSHD [2017] EWHC 2461 (Admin)].

Yet in 2016, the government launched a consultation on a replacement to the Detained Fast Track. And while the recent win by Medical Justice and Duncan Lewis is brilliant and to be welcomed, it must not be forgotten that only in 2013 the same point was litigated in EO & Ors [EO & Ors v SSHD [2013] EWHC 1236 (Admin)]. When the court established in that case that the identity of a person’s torturer did not matter for the purpose of the Detention Centre Rules, after a short period of compliance, the government simply wrote a new policy. Even the concessions won by ABC – significantly amended guidance from the DfE, a right of retraction for parents, abolition of the nationality/COB data-collection for under-fives – may be undermined by a provision in the Data Protection Bill that would strip individuals of their data protection rights on immigration control grounds.

Derrick Bell’s reflections on the use of strategic litigation to desegregate schools in the US are useful in helping us parse what to do to protect the gains we make through strategic litigation. In Serving Two Masters, he cites Leroy Clark’s argument that “the black community’s belief in the efficacy of litigation inhibited the development of techniques involving popular participation and control that might have advanced school desegregation in the South. He feels that civil rights lawyers were partly responsible for this unwise reliance on the law.” He goes on to note that “the problem of unjust laws is almost invariably a problem of distribution of political and economic power. The rules merely reflect a series of choices by the society made in response to these distributions.” Referencing Gary Bellow, he suggests that “rule’ change, without a political base to support it, just doesn’t produce any substantial result because rules are not self executing: they require an enforcement mechanism.”

I would argue that the lesson to be taken from this isn’t that strategic litigation isn’t effective, or that advocates should refocus their efforts away from the law. As I have set out elsewhere, the parlous situation that many migrants in the UK find themselves in, and particularly undocumented ones, is what Judith Butler might have called a highly juridified state of disposession, and efforts to remedy that dispossession must take into account the role of parliamentary process and the courts in producing it. And in any event, the lawful and the just do not inevitably correspond. No, in my view, the lesson from Bell is that strategic litigation (and NGO-style policy work more generally) is most effective when it takes place as part of – and is not privileged over – a broad spectrum of activity that is aimed at genuinely liberatory change.

A year after the ABC campaign began, we are taking the DfE to court to challenge its acquiescence to Home Office demands that it collect children’s nationality and country of birth. We do so in the knowledge that thousands of parents have registered their objection to the policy by refusing to give their children’s nationality data; that there is a relatively strong public understanding that children’s school records are being used for nefarious purposes, and that there exists a growing, if nascent movement calling for data held by essential public services to be firewalled from the Home Office’s immigration control functions.

Should we win, it will be much harder for the government to reintroduce the policy by the backdoor than if strategic litigation at the expense of a public campaign had been our first port of call last September. And crucially, despite aiming for a relatively narrow change in policy, the campaign has situated itself within a broader politics that demands that all migrants should be able not only to access education without fear, but that the UK’s education system itself should facilitate open conversations about migration and colonialism in a way that undoes the toxic anti-migrant policy and narrative that allowed this data collection to seem feasible to policymakers in the first place.

There is no one ‘right’ way to campaign. And even if there was, the substance of genuinely liberatory change varies significantly across individuals and groups. Advocates are unlikely ever to achieve consensus about how we can best do policy work or strategic litigation. Nor are we ever likely to settle the question of how best to convince people that our position is the right one without ceding the point that other people’s humanity is not to be decided by majority vote. And many of us grapple on a daily basis with the tensions of trying to square the necessity of short-term, piecemeal reforms with simultaneous attempts to open the way to greater and further-reaching change in the future.

Matsuda’s call for multiple consciousness – as a way of seeing, rather than a prescriptive way of doing – remains, years later, a tool of striking acuity in helping us rise to this challenge.

Gracie Mae Bradley campaigns with Against Borders for Children and works in policy and human rights at Liberty.

Leave a Reply

Your email address will not be published. Required fields are marked *