The Black Liberation Movement: Progressing the Uncodified Constitution

The Black Lives Matter movement has gained a legal identity in the UK, registering as a community benefit society Black Liberation Movement UK Limited (BLM). The society intends to fundraise through donations, direct political action and educate the public. Revolutionary in nature, the movement may have caused a wave of constitutional changes in the UK. The uncodified constitution, despite its uncertain contours, enjoys the “most flexible polity in existence,” allowing for contemporaneous reflection of the status quo. The BLM has practically impacted the operation of the three arms of the State.

Breaking Through Barriers

Genesis  

In State of Florida v Zimmerman 2012-CF-001083-A the defendant was acquitted of murder and manslaughter charges brought for the killing of an unarmed black teenager, Trayvon Martin. The jury verdict ignited nationwide protests in the US, when Alicia Garza’s Facebook post “a love letter to black people” was shared by others under #BlackLivesMatter. In the UK, the protests started on 31 May 2020, following the death of George Floyd caused by a state agent. The BLM in the UK has formally identified its focus demographic: the communities of black  African and Caribbean descent, women and black people from disadvantaged backgrounds, Muslim, queer, trans, non-binary, disabled, undocumented, HIV positive people and sex workers.

Government

In response to the BLM, the executive formed the Commission on Race and Ethnic Disparities supported by the Cabinet Office. The commission is to research inequality in the criminal justice and healthcare systems, in education and employment to ensure fairness through change. Similar works were previously carried out, for instance, in the Lammy Review, Windrush Lessons Learned Review, in the continuous work of the Equality and Human Rights Commission, etc. However, the Commission on Race and Ethnic Disparities will work with both existing and newly-commissioned research to create and implement a nationwide action plan. Individual members of the public and organisations are encouraged to highlight the ethnic disparities in the UK, allowing a more democratic approach to the research.

Another example of the BLM’s impact is the Judicial Appointments Commission encouraging applicants who would increase the diversity of the Supreme Court in its search for a new Justice. This shows the rapid development of the executive function in light of the BLM.

Parliament

The Parliament is integrating the BLM’s revolutionary influence into the conduct of its constitutional functions.
The Police Stop and Search (Repeal) Bill was introduced in June 2020 by Davey MP. The Bill aims to repeal inter alia section 60AA of the Criminal Justice and Public Order Act 1994, which states a police constable may require any person to remove any item the constable reasonably believes is worn for the purpose of identity concealment. This power extends to women wearing religious attire.

The Non-gender-specific Passports Bill was presented in July 2020 by Jardine MP, proposing to introduce non-gender-specific passports for non-binary people. Currently, the UK issues passports of either female or male gender. Under the Gender Recognition Act 2004, UK citizens may apply for the Gender Recognition Certificate to legally recognise their required gender. The non-binary population is presently unable to be identified in the same way as gender binary citizens.

The Election Candidates (All-ethnic-minority Shortlists) Bill was introduced in October 2020 by Hobhouse MP. The Bill aims to amend the Equality Act 2010 enabling political parties to draw all-ethnic-minority shortlists for the election candidates selection, an ambition also expressed by Starmer MP. No documents have been published regarding this Bill, but it has already raised polemics. The Equality Act 2010 established safeguards for protected characteristics in the context of political parties. Section 104 (6) provides: “selection arrangements do not include short-listing only such persons as have a particular protected characteristic.” The Bill contravenes this provision and may be interpreted to obscure the identity of the candidate exposing only the protected characteristic. The controversy Hobhouse’s Bill instigated resonates with the argument of “BAME” being an offensive umbrella term, as ethnic minorities are not defined by the ethnicity. However, the Bill’s face-value motive appears that of fighting inequality.

Judiciary

The judiciary undoubtedly supplemented the public policy to echo the BLM.

 N (FC) v SoS for the Home Department [2005] UKHL 31 held the appellant, an HIV positive Ugandan national, could not stay in the UK to prolong her life expectancy, even though HIV treatment availability was inadequate in Uganda. No violation of Article 3 was found. In contrast, earlier this year the same court held the opposite in the circumstantially indistinguishable case of AM (Zimbabwe) v SoS for the Home Department [2020] UKSC 17. This is a manifest example of the common law development. Public policy, in the words of Sir Winfield, “subordinates individual gain to public benefit.” This comparison shows the stark change of public policy in light of the BLM, with the appellants’ gain subjective.


Chief Constable of West Yorkshire v Dyer [2020] EWCA Civ 1375 questioned the reasoning behind a coroner’s decision against the use of screens during a trial and the subsequent reverse decision of the High Court. Males LJ at paragraph 125 noted:

“The death of a black man in police custody gives rise to particularly acute concerns. There is no doubt that black communities have in general less confidence in the police than other sections of the community, and that on occasion distrust and lack of confidence have led to racial tensions and conflicts.”

The appeal remitted the matter to the coroner for reconsideration, effectively acknowledging the concerns raised by the BLM.

R (on the application of Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 found in favour of the appellant, an education provider with 66% ethnically diverse students. The appeal concerned the refusal to register Bloomsbury as a higher education provider. Males LJ at paragraph 78 stated:

“Ensuring access to high quality education for students from disadvantaged backgrounds is one of the top priorities for providers of higher education.”

The judiciary acted in alliance with the Commission on Race and Ethnic Disparities in its aim to eliminate education inequality.

R (on the application of RD) v SoS for Justice [2020] EWCA Civ 1346 held rejecting an application to join the police service due to a reprimand for a minor offence received before adulthood is “highly unlikely to be lawful.” Importantly, the ratio decidendi highlighted the disproportionate number of black children receiving reprimands. The Court took into consideration the BLM’s objective.

Conclusion

The BLM has progressed the uncodified constitution of the UK. The three arms of the State have practically implemented changes in search of equality and justice.

Halyna Kholod, Law LLB (Hons)

Works consulted:

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