UKIP’s “Integration Agenda” is a masterclass in legal ignorance and shameless racism

Some political proposals are so self-evidently preposterous that to analyse them is to risk conferring dignity on the undignifiable. However, UKIP’s “Integration Agenda”, a rat’s nest of racialised assumptions masquerading as putative legal reform, trespasses egregiously onto the criminal law. Which, as any fule should know, is this blog’s turf. And on this turf, no idiocy is too stupid to be rebuffed.

The Integration Agenda is in many ways an admirable feat, in that it  diminishes by comparison the barminess of Gisela Allen, the UKIP local election candidate who this weekend called for a buffet of reform that included bringing back the guillotine and cat-o-nine-tails, euthanising people to stop them “getting too old” and banning women from public life. It reads as follows (H/T @jessicaelgot):

 

Dimensions of time and space prohibit an examination of the full manifesto, so let’s consider a choice selection, hold our noses and inspect the intellectual machinery at work:

“Pass a law against the wearing of face coverings in public places. Face coverings are a deliberate barrier to integration and, in many contexts, a security risk too. The time has come to outlaw them. People should show their face in a public place”

By “face covering”, UKIP plainly intends to target the “niqab” (or, as Kippers inaccurately often refer to it, the burkha), in an emulation of the ban enacted in France in 2010. The problem with such laws, as France has discovered, is that in order to maintain the façade that this is not an attack on a particular group of people, rather a general principle, you have to ban all face coverings. Which means prima facie outlawing balaclavas, motorcycle helmets, Halloween masks, gimp suits, zentais (those all-in-one spandex body suits beloved of stag parties abroad) and football mascots, and then working backwards to create exemptions to avoid the law being utterly unworkable. UKIP has today spent significant effort responding to questions as to whether large, face-obscuring hats as worn on Ladies Day will be criminalised, and whether the ban would include beekeepers. Whatever your position on the liberal principles at play, the practical flaws with such laws are obvious.

“Implement school-based medical checks on girls from groups at high risk of suffering FGM. These should take place annually and whenever they return from trips overseas.”

Female Genital Mutilation (FGM) is a vexed topic with an unhappy history of state inertia at its heart. Needless to say, any pragmatic legislative changes that might save the ritual devastation of thousands of young girls each year should be given serious thought.

Serious thought, however, is the magical missing ingredient from UKIP’s proposal. It appears to take its inspiration from the controversial approach in France, where the law provides for widespread medical examinations of children, which it is said has assisted in the prosecution of cases of FGM (albeit under French law there is no specific such offence).  But there are key differences. Firstly, the French system is not mandatory, although receipt of social security is dependent on participation. Secondly, it covers all children up to the age of six. For older children, girls identified as being at particular risk of FGM are required to attend for annual check-ups, and to submit to examination when returning from abroad.

When the French model was considered by the Home Affairs Committee in 2014, they heard evidence that the model had had the effect of increasing the age at which girls were forced to undergo the procedure so as to avoid the “mandatory” tests. Furthermore, the Royal College of General Practitioners told the Committee that routine screening could alienate hard-to-reach individuals and communities, which may prove self-defeating.

But whether the French model is desirable or not, a key difference is that, unlike UKIP, it is not premised on targeting unspecified social “groups”. Up until six, all children are examined. Beyond that, the focus is on girls identified as being at risk. There is an element of non-arbitrariness and proportionality, which is important when you are talking about invasive medical examinations of children. Similarly over here, compulsory medical assessments of children generally require the authority of a court (as with Child Assessment Orders) which will consider whether, on the facts, such invasive action is necessary. I will be corrected by anyone with greater expertise in the area, but I struggle to see how blanket compulsory invasive examinations of children of an undefined particular “group” can possibly be proportionate and not amount to undue interference with the child’s right to privacy and personal autonomy (as guaranteed by the UN Convention on the Rights of the Child).

By focussing on chosen “groups” and not individual assessments of risk, UKIP opens itself to charges of malign motivations, particularly in light of the rest of the Agenda (see below). And what of those unidentified “groups”? Does this include the child’s race? The child’s ethnicity? The child’s nationality? The child’s religion? Or does the heritage test run deeper? The parents’ race/ethnicity/nationality/religion? What if a child is adopted? Or mixed race? What if the child was born in Somalia to Muslim parents, but came to the UK and was raised by white Christian relatives? What happens to a 15 year-old convert to Islam? Does it matter if she is of African heritage? What if she is white? What  will be the statistical threshold of “high risk”? Unless UKIP has answers to these, it will take significant effort not to hear a screeching dog whistle behind this policy, and infer that by “groups” they mean, loosely, “Muslim”, “brown” and “black”.

A final salute must be given to the intellectual endeavour behind the broadness of the final criterion, “whenever they return from trips overseas”, ensuring that the unfortunate child taken to Disneyland Paris for a weekend will enjoy a return journey contemplating her Monday morning at school spent with a stranger inspecting her labia.

“Make failure to report an instance of FGM by someone who has knowledge that it has taken place a criminal offence itself.”

Positive: The germ of a good idea.

Negative: This is basically already law. Section 3A of the Female Genital Mutilation Act 2003, as amended by section 72 of the Serious Crime Act 2015, makes it a criminal offence, punishable by up to 7 years’ imprisonment, for a parent or other responsible carer of a girl under 16 to fail to protect her from an act of FGM. Section 5B of the 2003 Act places a positive obligation upon healthcare professionals, teachers and social workers to report discoveries of FGM to the police.

“The CPS to operate under a presumption of prosecution of any parent whose daughter has undergone FGM [Female Genital Mutilation]”.

Putting aside the casual reversal of the presumption of innocence lying at the heart of our justice system, a “presumption of prosecution” means one of two things: either it surpasses the current test for prosecuting, about which below, or it doesn’t, in which case it is meaningless.

If it is intended to have meaning, it must supplant the existing Code for Crown Prosecutors, the guidance governing decisions to prosecute, which is issued by the Director of Public Prosecutions (DPP) under section 10 of the Prosecution of Offences Act 1985. Criminal prosecutions must only start or be continued where the Full Code Test is met. This comprises two parts: (i) the evidential test; and (ii) the public interest test.

The evidential test is simply expressed: On the evidence available, is there a realistic prospect of conviction? The public interest test comprises consideration of various factors, including the seriousness of the offence, culpability of the suspect, harm caused to the victim, age of the suspect, community impact, proportionality of prosecuting and national security.

It is unclear which of these two tests the “presumption of prosecution” is expected to override. If the former, it will mean that cases where it has been judged that there is no realistic prospect of conviction (such as where one parent is estranged from the child and does not appear to have the requisite “frequent contact” with her) will be prosecuted at significant public expense, with young, brutalised girls deliberately dragged through the mire of criminal litigation to no avail. If the presumption in favour of prosecution is to kick in at the public interest stage, then UKIP would be advised to read the existing Code, which, in the chapter dealing with the pubic interest test, states (at 4.8):

 “Once the evidential stage is met […] a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.”

Or what one might call a presumption in favour of prosecution.

“In cases where the victims of grooming gangs are of a different racial or religious group than the offenders, the CPS should cite this as an aggravating feature of the offence when prosecuting, opening the way to a longer sentence.”

 The meat of the racist pie. What this is not-so-subtly aimed at is those stories that excite the tabloids where gangs of Asian (often Muslim) men groom white girls. For UKIP, if there is one thing that aggravates the rape of a child, it’s a mixing of the races.

Currently, courts are required by law (section 145 of the Criminal Justice Act 2003) to treat racial or religious aggravation in the commission of an offence as an aggravating factor in sentencing (save for in relation to specific offences which are by definition racially/religiously aggravated, such as racially aggravated common assault).

What amounts to “racial aggravation” under s.145? The definition, set out at section 28(1) of the Crime and Disorder Act 1998, is where:

at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group or the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

This, it can be seen, is a definition that focuses on the defendant’s specific conduct. It doesn’t matter what race the defendant or victim is – it is the particular intent that matters. The offender and victim might be of different races, or the same – it’s irrelevant. UKIP’s reform would turn this on its head, focussing not on what the defendant did or said, but entirely on the colour of his skin. All that would be required, in certain (unspecified) offences related to child grooming, is that the victim belong to a different racial or religious group than the offender. The actual existence of racial or religious aggravation would be irrelevant. The message, whether intended or not, is, “It is worse to rape a child of a different race to your own.” It is difficult to discern a motivation behind this policy other than naked racism.

 “CPS and police to be instructed to treat a so-called “honour” dimension of any act of violence as an aggravating feature, leading to it being accorded a higher –priority for investigation and prosecution and not a lower one.”

The premise of this pledge is that “honour” acts of violence are presently a “lower” priority for the police and CPS.  And I agree. What have the police and CPS ever done about “honour” violence for us? Apart from the ACPO (Association of Chief Police Officers) Honour-based Violence Strategy, of course. And the National Police Chiefs Council’s Honour-based abuse Policing Strategy. Also the CPS Protocol on handling “so called” Honour Based Violence/Abuse and Forced Marriage Offences. I suppose there’s also the long-running Violence Against Women and Girls Strategy, as detailed in the Cross Government VAWG Action Plan, overseen by the VAWG Inter-Ministerial Group. But apart from that, what have the police and CPS ever done about it? And when have they ever considered this to be a priority for investigation and prosecution? Aside from the action plan developed last year to address ways to improve prosecutions. Etc. Etc.

No-one wants to suggest that UKIP are a bunch of hog-brained, village ninnies who haven’t even consulted Google before firing off a range of mind-spasmingly senseless policies designed to prey on the very worst racial prejudices of their core voters. But an Integration Agenda that proposes intimately examining the genitals of children from minority groups, dragging such children through courts as witnesses where there is no prospect of conviction and locking up people for longer on the basis of their race, does not assist their cause.

 

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UPDATE: A number of commenters with first-hand experience of the French system have been in touch and advised that the position as understood by the Home Affairs Committee regarding compulsory medical checks in France is incorrect. I am informed that, in fact, the medical checks that take place up to age 6 do not include invasive genital examination. The evidence reported by the Committee in 2014 and 2016, upon which I have relied, can be found here and here.

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10 thoughts on “UKIP’s “Integration Agenda” is a masterclass in legal ignorance and shameless racism

  1. I think your blog is wonderful and agree with the vast majority of your post. But I’m pretty sure that you are wrong about the law in France. I have brought up three children here and none have had any form of examination which would have disclosed FGM. There are rules about vaccinations/age-based check ups which are enforced by means of witholding child benefit (vaccination is effectively also a prerequisite of school attendance certainly in the public sector) but none of these involves invasive examination. Can I ask where you got your info on the law in France (happy to find out that I am wrong – genuinely interested)?

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  2. You say: No-one wants to suggest that UKIP are a bunch of hog-brained, village ninnies who haven’t even consulted Google before firing off a range of mind-spasmingly senseless policies designed to prey on the very worst racial prejudices of their core voters.

    Presumably that means that you personally don’t want to suggest that UKIP are a bunch of hog-brained, village ninnies who haven’t even consulted Google before firing off a range of mind-spasmingly senseless policies designed to prey on the very worst racial prejudices of their core voters.

    That’s good, because your analysis, while by and large sensible and interesting, would come nowhere near justifying that kind of language.

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  3. “But whether the French model is desirable or not, a key difference is that, unlike UKIP, it is not premised on targeting unspecified social “groups”. Up until six, all children are examined. Beyond that, the focus is on girls identified as being at risk. There is an element of non-arbitrariness and proportionality, which is important when you are talking about invasive medical examinations of children.”

    I realise from the rest of the “integration agenda” why this point is being made, but it still seems a bit of a contortion. UNICEF and others have compiled figures on the countries where FGM is most prevalent and where children would be at highest risk, and FGM itself is a cultural practice. Surely it can’t really be claimed that it’s arbitrary to expect to find FGM taking place in cultural groups that are known to perform it, particularly where girls of the typical age within those groups are being taken to countries with a high reported percentage of FGM as well. There are always outliers and more complex situations of course as you mention, but I suspect the vast majority could be covered with some pretty specific criteria.

    I also think there’s a real danger of overreaction here. FGM is a terrible form of child abuse, and UK law has demonstrably failed to tackle it with any degree of success. Of course policies like this should be properly evidence based, but I worry that from comments I’ve seen on this elsewhere (such as comparing screening like this with the Cleveland child abuse controversy) that the lifelong trauma and damage of FGM is being trivialised. It seems to be suggested that medical examinations (which could be incorporated into annual gynecological exams of the kind that are commonplace for adult women already) are potentially so traumatic that they’d be more harmful than the cases of FGM they could help prevent, which frankly sounds just as barmy as the rest of that UKIP document.

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    • Women don’t have annual gynaecological exams. Smears are every 3 years and those start at age 25. Women aren’t even examined to check healing after birth interventions such as episiotomy.

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  4. Such a good piece, thank you!
    And then it ends with the hopeful words of the people clinging to the fundamental goodness: “…does not assist their cause”.
    But it does! *sobs* – no amount of legal commentary that enlightens and even, in the face of darkness, amuses us, will change the fact that it’s another ladle of catnip strewn onto the path of the morons which we have allowed to grow in our midsts through awful neglect in education, poor management of services and not enough good examples of our human values to counter the hate-spewing tabloids (which admittedly is a task akin to that of Sisyphus, but still…).

    I may have misunderstood the context of that sentence, in which case I offer my sincere apologies.

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  5. Face coverings might include brides’ and widows’ veils, arc welders vizors, and the surgical masks worn by operating theatre staff. Hmmm.

    For FGM: The Criminal Law (Northern Ireland) Act 1967 was copied word for word from the same act in GB — except for Section 5. This was specifically designed as an anti-terrorist legislation. Under this, if a person knows or believes that a crime has been committed, that person must notify the police. Failure to do so is a crime. A belief is sufficient, hard proof of criminality is not necessary. (This also relates to changes in Child Benefit/Child Tax Credit. This no longer applies to the third or subsequent child, though with some exceptions. One exception is where the pregnancy results from rape. If a woman claims this tax credit because of rape, and hasn’t informed the police, she becomes a criminal, as do the people from whom she must get the appropriate certificate and the officers in the benefits offices.)

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  6. Fine analysis, but you’ll already appreciate that this integration agenda isn’t aimed at the learned types of the legal profession. It’s there to play well with the types who spend their weekends at EDL demos, or those who aspire to such activity.

    I can’t find anything to agree with except the initial sentence of the final paragraph.

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  7. I recently found myself in a lift with four ladies, all wearing niqabs (high-end dept store…obviously). I hadn’t really thought about it before, but it was more than uncomfortable: I was unnerved, just as I would have been if it had been four people wearing motorcycle helmets, or balaclavas.

    A law could be written which excludes full face covering in public places, unless it is a requisite for H&S reasons. The authentic reading of Scripture does not deem the niqab as compulsory, so the implementation of a law against it isn’t actually going to compromise their faith. It seems ridiculous to suggest that anyone would resort to beekeepers outfits or arc welders’ masks.

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