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By the editor, Apr 13 2020 07:32PM

News about the Prime Minister's illness has been laced with martial and religious imagery. "The British people do want a fighter," Dan Hodges wrote in the Mail on Sunday, defending the widespread comparisons with the Second World War. The British supported the man who "worked himself into the ground - and then into intensive care". Numerous reports referred to him as a proven "fighter". In the Sun, "He stayed at work for you... so pray at home for him". Tim Montgomerie hailed his recovery as a "miracle" after some people had prayed for him. He had suffered for us, the narrative went, but he had risen again.


All of us are going a little bit mad being cooped up, and it can manifest itself in different ways. But behind the hysteria, there is I think a widely-held assumption underlying all such comments. That is: we expect our leaders to carry on working when they're ill. Ordinary mortals who are told by their doctors to rest might be expected to do so. But not Prime Minsters. They must "battle on". If they end up in intensive care, so be it. It is their selfless duty that led them there. After that, all we can do is pray.


This is perhaps the most damaging manifestation of the "presenteeism" that permeates all organisations, not just the Government. Everyone has come across those in senior positions who revel in flaunting their work ethic. When I started my working life, I assumed this was a private sector thing, especially bad in the most highly paid jobs. A friend working for a "Magic Circle" law firm was once scolded by her boss for leaving work at 6. "But I've finished all the work you've given me." "Well", he told her, "don't feel you have to finish it that fast.". In other words, don't be too efficient - people might think you're slacking. It turns out to be as bad in the public sector. I was told once I had little chance of promotion unless I put in a few "late nighters". Senior managers compete with each other to boast about how much work they take back home at weekends.


Similarly, those in senior positions often struggle into work when they're ill. The subtext is, at least, two-fold: firstly, that they're too important not to be in work; secondly, that they're made of sterner stuff than those on the shop floor, They both need to, and can, "battle through". Sometimes, of course, there is something to all this - some people are very difficult to replace, and some people may genuinely be better at fighting off illness than others, and there may be an element of genuine altruism in putting work ahead of health (even though it may be other people's health that is put at risk as well their own). But to a great extent it is simply vanity, and fear - the fear of being thought of as something other than indispensable and indestructible. It's not only the individuals concerned who are to blame, of course: there's a cultural expectation that people in such positions behave in this way.


The higher up the ladder, the greater the pressure to meet this expectation. So for someone as high up as the Prime Minister, it's almost unthinkable that they would simply rest up after getting ill.


And there's a link to another common trait, particularly manifest in this Prime Minister and this Government - the distrust of experts, the cult of the gentleman amateur, the disdain for "girly swots", and the belief in winging it - what might be called the UK's "James Bond problem". Bond won't listen to doctors about his lifestyle, or civil servants about protocol, or anyone else about anything - he'll save the world regardless. I suspect Mr Johnson sees himself in this heroic mode. Certainly many of his admirers do.


The negative consequences of this are serious. Firstly, the Government is urging everyone to follow medical advice. But the message from the Prime Minister is that sometimes it's okay to ignore the medical experts: he carried on working regardless (apparently even taking the red boxes to hospital). Some of this might be PR, of course, but it was clear from some video footage that he was up and about while ill,and wasn't taking as much rest as he should have been. And it fits with much of his other personal behaviour, treating Covid 19 in a lighthearted fashion till mid-March - when he would have known for several weeks how dire the situation was going to be. For example, talking about shaking hands with victims in hospital, working cheek by jowl with colleagues and officials, and attending a packed rugby match, when he would have known the potentially fatal consequences of unnecessary social contact.


Secondly, his admission to hospital has caused potentially serious destablisation to his Government. His recuperation is likely to take several weeks, and could have been even worse. If he couldn't help ending up in hospital, of course we shouldn't blame him for this. As it is, since he ignored medical advice to rest knowing the risks, he does bear some of the blame.


Thirdly, by ending up in intensive care, he's used up precious medical resources, at a time when the NHS is under its severest ever strain. This may sound callous, but playing fast and loose with medical advice is irresponsible when those are the consequences. That is especially the case when you are a person in such a position of such responsibility, and know so much more about the disease and the implications for the NHS. If he could have taken precautions to reduce the risk of being hospitalised, he had a duty to others, as well as himself, to do so.


Finally, what light does this shed on the Government's handling of the crisis generally? We are told repeatedly that they are following the medical advice. But the extent to which they are - and were, at the start of the crisis, when they seemed slow to act - remains in doubt. Given that the Prime Minister has ignored some of the medical advice as it applied to himself, it would hardly be surprising if the Government had decided to ignore some of the medical advice applying to the country.




By the editor, Apr 3 2020 06:44PM

The Regulations restricting movement during the coronavirus crisis have understandably received a lot of comment.


I'm going to consider here the particular aspect of "reasonable excuse", which is critical in understanding what the parameters of the offence are.


Under the Regulations for England (Regulations 6 and 9 are copied below), an offence is committed if the following requirement is breached: "During the emergency period, no person may leave the place where they are living without reasonable excuse." (Similar provisions apply for the other parts of the country, though the specified excuses are slightly different.) So it is leaving home without such an excuse that creates the offence. The excuse is clearly key.


BURDEN AND STANDARD OF PROOF


Usually of course the burden of proving whether or not someone commits an offence is on the prosecution, and the standard of proof is being sure (or beyond reasonable doubt).


It's unclear whether the burden of proof is reversed in respect of this defence. If the legislation had intended to reverse the burden, one would expect it to say so explicitly (e.g. "it is a defence... to prove that he has a reasonable excuse...", see for example section 2(4) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004). In some cases the burden can be reversed without the legislation explicitly providing for this - though courts are reluctant to rule accordingly because of the implications for the presumption of innocence (R v Hunt [1987] AC 352). If the burden isn't reversed, it is "for the [defendant] to raise the evidential issue of reasonable excuse, and then for the prosecution to prove lack of reasonable excuse" (R v Evans [2004] EWCA Crim 3102). To put it another way, the defendant has to put forward what their reasonable excuse is, but they won't be convicted unless the prosecution can prove (beyond reasonable doubt) that there was no such reasonable excuse.


My own view is that the burden isn't reversed here, but because of the peculiar nature of this offence (considered below), this is not clear-cut.


SUBJECTIVE OR OBJECTIVE?


Is it a subjective or objective test? As often, it's likely to be a mixture. Someone with particular characteristics or in particular circumstances may have a reasonable excuse, where the same excuse given by a different person or in different circumstances may not be reasonable. But having considered those characteristics and circumstances, the test of reasonableness is to be judged by the standards of the reasonable person, not the person claiming the excuse (Bryan v Mott [1976] Crim LR 64). So for example simple forgetfulness has been found by the courts not to amount to a reasonable excuse for certain offences in any circumstances (R v Jolie [2003] EWCA Crim 1543).


CONTEXT OF THE PROVISION


What amounts to "reasonable excuse" - and the extent to which it will be up to the defendant to demonstrate this to the court - will depend on the particular context of the offence. So for example in the case of possession of a bladed article, if someone is carrying a Swiss Army knife, it won't be enough simply to claim that they might be thinking of using the corkscrew (R v Giles [2003] EWCA Crim 1287) - the legislative provision concerned was introduced to stop bladed articles being carried about generally, so having what might otherwise constitute a good reason for carrying something like that wasn't good enough.


Usually, a "reasonable excuse" defence exists in respect of a specified offence. So X is a prohibited act, and Y is the reasonable excuse which exempts a person from criminal liability for X. The Regulation 6 offence looks unusual in that leaving the home is not itself a prohibited act - it's not a "legal wrong" in itself. It only becomes wrong when there is no reasonable excuse.


So there's an implicit presumption in the Regulations that leaving your home is wrong - you have to rebut the presumption with a good enough reason. Even if this doesn't reverse the burden of proof as a matter of law, it does place a significant factual burden on anyone accused to show that they weren't committing an offence.


The overall purpose of the provisions is clear - to enforce social distancing. To some extent, what is considered a reasonable excuse will be informed by social norms that have developed over the last few weeks as to what is acceptable and isn't. The Government's guidance forms a part of that picture, and to this extent, dovetails with the law governing the offence. But the distinction between guidance and criminal offences obviously remains very important. Some police forces have got it badly wrong in claiming that certain specific actions, such as driving to beauty spots or buying certain goods, are in themselves offences under these provisions, when they clearly aren't. In fact the messages sent by the police are likely to be counter-productive, in weakening these social norms.


EXCUSES NOT ON THE LIST


There is a list of examples of what a reasonable excuse may include in Regulation 6(2). But this is non-exhaustive - so there may be other reasonable excuses not listed here. There has already been speculation about whether people with certain medical conditions and special needs, or those wishing to engage in religious worship, will or should be guilty of this offence. It's clear that such reasons may amount to a reasonable excuse, even though they're not on the list in Regulation 6(2), but this will depend on the particular facts. And it may be more of a struggle to persuade a court that such excuses are reasonable, because they aren't specifically listed.


EXCUSES THAT ARE ON THE LIST


The excuses covered under 6(2) should always provide a defence, because of the way the provision has been drafted. But note that each is subject to there being a "need". How is that to be determined? It will depend on the facts, and the court. And the nature of what is considered reasonable in respect of each excuse listed will also depend on the facts. And there may of course be dispute about the nature of each excuse, such as what amounts to "basic necessities".


OTHER REASONS FOR LEAVING HOME


Providing there is (at least) one reasonable excuse for leaving, it doesn't seem to me to make any difference for this offence what happens afterwards. So for example, leaving to buy food, and then meeting up with people, and going to someone's house for a party - that would clearly contravene guidance, and may involve another offence, but wouldn't be an offence in respect of Regulation 6. The legislation was clearly drafted to make leaving home without reasonable excuse an offence, rather than being outside without reasonable excuse, and I'd be very surprised if a court ruled differently.


However, a court is likely to consider the whole factual context in assessing whether there was a reasonable excuse. It shouldn't simply accept what a defendant says at face value. If someone goes out shopping and then ends up at a party, and claims they only left home for the shopping, a court might (depending on the facts) consider that the real reason the person left home was to go to the party, there was in fact no "need... to obtain basic necessities", and it would be open to the court to find no reasonable excuse.


_____________________________


The Regulations - Reg 6 and 9 of SI 2020/350


Restrictions on movement


6.—(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.


(2) For the purposes of paragraph (1), a reasonable excuse includes the need—


(a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2;


(b) to take exercise either alone or with other members of their household;


(c) to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;


(d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(3), to a vulnerable person, or to provide emergency assistance;


(e) to donate blood;


(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;


(g) to attend a funeral of—

(i) a member of the person’s household,

(ii) a close family member, or

(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;


(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;


(i) to access critical public services, including—

(i) childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);

(ii) social services;

(iii) services provided by the Department of Work and Pensions;

(iv) services provided to victims (such as victims of crime);


(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;


(k) in the case of a minister of religion or worship leader, to go to their place of worship;


(l) to move house where reasonably necessary;


(m) to avoid injury or illness or to escape a risk of harm.


(3) For the purposes of paragraph (1), the place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises.


(4) Paragraph (1) does not apply to any person who is homeless.



Offences and penalties


9.—(1) A person who—


(a) without reasonable excuse contravenes a requirement in regulation 4, 5, 7 or 8, or


(b) contravenes a requirement in regulation 6,


commits an offence.



By the editor, Mar 25 2020 10:38AM

We need to be cautious in commenting on this crisis, but it is, I hope, uncontroversial that we shouldn't hold back from pointing out clear mistakes, whether that is for learning to deal with a later phase of the crisis, or for dealing with a similar crisis in the future, or for assessing the competence of those taking the decisions at the moment.


One serious mistake, it seems almost certain, was not encouraging people who could work from home to have done so much sooner. Currently, of course, pretty much everyone who can is doing so. But there was a clear opportunity to encourage people several weeks ago, which wasn't taken up.


There's a danger that this issue gets lost as events hurtle on, but it seems to me that the mistake was significant, in terms of the attempt to "flatten the curve", and needs to be noted.


I first tweeted about this on 9 March, when the scale of the crisis was starting to become clear. I work in a public sector organisation, and work from home twice a week. Many in my organisation work from home occasionally too. It was clear then that the whole organisation could operate remotely if needed, possibly with a small minority of staff in the office. My work brings me into contact with those working for Government Departments in Whitehall and elsewhere, and other public sector organisations, which were all in a similar position.


Back in early March, there was a message from the Government that it didn't want to move too soon to enforce social distancing. Whether they got the timing right isn't considered here. I'm interested in why the Government wasn't encouraging people to work from home at an earlier point. What in fact happened was that many private sector organisations started doing this before the Government made any statement about it, during the week beginning 9 March. It was only in the following week that the Government set out its position.


What the Government could easily have done, at least as early as 9 March, but probably much earlier than this, once it was aware that the UK was following Italy's path, was simply tell all public sector workers who could work from home to do so immediately.. This wouldn't have required all such organisations to close their offices. They would have had time to allow more people to work from home, and otherwise prepare for the likely eventual move to remote working for nearly everyone. An alternative, if this had felt too drastic initially, would have been to recommend, rather than require, the same thing - i.e. all organisations should operate on the presumption that anyone who could work from home should do so, without there being an actual requirement.


There are over 5 million public sector workers in the UK. Of course, many of those cannot work from home (including many of those working in the NHS). But a significant minority (working in offices, especially in London) can, and this measure could have stopped several hundred thousand people from going to work each day, for at least an extra week, and probably several weeks, while the virus was taking hold.


If the Government had done this, coupled with a recommendation to all private sector employers to do the same, the effect would in fact have been much greater. As I said, some private sector organisations (such as law firms and other professions, and others working from offices) had already started - but the practice would have been much more widespread had the Government taken the initiative. Even if not motivated by altruism, such organisations would have been under pressure from their employees, and would have been worried about their commercial reputations, if there was a nationwide move towards homeworking, and they were resisting.


It wouldn't have stopped everyone, of course. And some people (like me) were already working from home at least some of the time. But multiply the number of people - likely to be millions - by the number of days, and the total number of additional days individuals would have stayed at home would have been several million. Consider also the typical social interactions that commuting to and working in an office involves: often crowded public transport (for me for example, it's a bus, a train, then a tube, repeated twice), then the day spent working in a air-conditioned building (often open-plan, sharing keyboards, phones, kitchens, toilets), popping out for lunch in a canteen or cafe. These must be close to ideal conditions for the virus to spread. We now understand that it's spread most quickly in London. How much slower might the spread have been if this simple, painless measure had been taken?


There are wider considerations too. Part of the success of the Government's strategy is based on people trusting what it says, being seen as competent, and building consent for its measures. Here is an example of the Government acting too late - following, rather than leading. It doesn't inspire confidence. What other decisions might have been made too late?


So why didn't the Government take this action? I can think of a few potential reasons.


One: there was the worry about moving too fast on social distancing. But as set out above, the Government could have made this a recommendation only at that stage. Working from home does not mean total social isolation. Those who particularly wanted to work in the office could have done so at that point. If anything, a more gradual path to getting people to work from home was likely to have helped over the longer term, as people got used to the idea, had time to order relevant equipment and make other arrangements, and the final move towards mandatory homeworking didn't have to be rushed out in the way it ended up happening.


Two: perhaps the Government was pursuing a "herd immunity" strategy, and didn't want to slow the rate at which the virus spread at this point. I don't know whether this was actually the Government's policy. But even if it was, my understanding is that the Government wasn't at this point actively encouraging the spread of the virus, but rather that it was seeking to delay the point at which the most stringent measures would be implemented to slow it. Hence its "soft" approach at this time - such as encouraging people to wash their hands. Encouraging people to work from home (rather than forcing them to) would have accorded with that strategy..


Three: the Government was worried about a drop in productivity. I suspect this may be something to do with it. There are of course diifficulties working from home - especially, we can find it difficult not seeing colleagues in person, and it's more difficult to manage people, perhaps to the point where some workers are simply not working at all. But it could have been left to the organisations concerned to implement any recommendation to work from home as they saw fit, and the recommendation period concerned was likely to be brief (as it turned out) or it could have been subject to review otherwise. But the main point is that any decrease in productivty was likely to be minimal considering the scale of the developing crisis at that point.


I suspect in fact that there is a linked point, for which I only have anecdotal evidence - my and others' experience of working in several public sector organisations. Those at the top of these organisations usually have no childcare or other caring responsibilities, and despite public professions of enthusiasm for flexible working, are in fact usually ambivalent if not hostile. I can imagine Ministers and Permanent Secretaries, at a particularly difficult time, not liking the idea that many of the staff they rely on might suddenly no longer be around. This may well be why they waited till the last possible moment.


Whatever the reason, it doesn't seem to have been a good one.

By the editor, Mar 9 2020 11:21AM

Perrg Tursit

Reader in Memes, Cultural Norms, and Folk Studies

University of Ingenstans


__________________________________________________________________________


This exploration of a devastating and mysterious event is one of the most disturbing works to emerge from the Ulvaeus-Andersson stable.


It starts on a note of melancholy as a grim foretaste of the horrors to come. Although the summer air was both soft and warm, and the feeling apparently “right” (right in what sense? we begin to wonder), Paris only “did its best” to please the couple. The couple concerned had a drink in every café on the 2 km stretch of the Champs Elysees. There seems little point in having a soft drink in every single café, so we assume these were alcoholic drinks, and also downed in one session. During this binge, one of the couple (“you”) was engaged in what must have been a marathon monologue ranging over politics and philosophy, while the singer simply smiled, “like Mona Lisa”. Whether the singer’s expression was due to her own inebriation, or the boredom induced by her partner’s drunken ramblings, or some more sinister factor, isn’t immediately obvious.


She then tells us that she can “still” recall their last summer. The immediate thought is that this is a defensive response to the suggestion that the drunken stupor might have dulled the singer’s memory. This interpretation gains some support from the later reference to the “crazy years”, the time of “the flower power” (note the definite article – this was not just any old flower power). But is drink the only explanation? It is here that the song darkens dramatically.


During the superficially carefree “age of no regret”, those crazy years of the flower power, there lurked, we are told, a “fear of flying”. We immediately think of aeroplanes, of course, and the trip back home from Charles de Gaulle. But we are brought up short: there is also a fear of “growing old”, of “slowly dying”. All these, separately, are widely-held fears; but their juxtaposition forces us to a different conclusion. No one is simultaneously afraid of a) flying and b) growing old and “slowly” dying. Quite the reverse. Unless, perhaps, the fear is not of flying itself, but of what the journey entails.


We’ve assumed, until this point, that the couple were on holiday in Paris. But the song doesn’t state this. In fact, it gives a clue later on that this isn’t so. There’s a reference to the “tourist jam” around the Notre Dame. Perhaps, then, the couple aren’t tourists themselves? Perhaps we can assume that somehow, in their fear of flight from the city, they’ve sought refuge at its very centre, and allowed themselves to be metaphorically pulverised in the crush of sightseers. The image is one of ghastly contrast: the escapist holiday crowd; the fateful couple subsumed in its midst who are terrified, themselves, of escape.


The “chance” they then took was like “dancing our last dance” when they were “living for the day”.

Precisely what decision has been taken? And by and concerning whom? The listener can’t help here remembering that reference to the fear of slow death, and thinking of the sort of choice that such a prospect might prompt. We feel the shadow of some incurable disease falling.


But once again our assumptions are confounded. The singer’s lover is suddenly revealed to have an afterlife as a “family man”. The person who had earlier declaimed so extensively and alcoholically on the humanities has found employment “in a bank”. Furthermore, he’s become a “football fan”. Both are matters we are invited to find surprising, especially in combination. But these are only tasters for the next bombshell. The person has also now, we learn, changed names to “Harry”.


“Now” the person’s “name is Harry” we are told, unequivocally. Why on earth change names? There are various possibilities. His full name could be “Harold”, and perhaps he liked to be addressed by his full name previously (although not a preference we readily associate with the “years of the flower power”). Or he could have been “Henry”, for which “Harry” is an alternative. Or Harry could have been one of his other Christian names. Whichever of these may be the case, perhaps “Harry” was how he preferred to be known by banking colleagues and fellow football fanatics.


All these explanations seem implausible, however. It seems much more likely that the new name was chosen, like the new career and sporting interests, as part of an entirely new identity. The key here is “family man”. His new life is one of conventionality – with a family, as a man.


The shocking thought strikes us: might this new identity – so clearly male, with its high performance career choice, its macho hobby, its pugnacious royalist name, its patriarchal boast of progeny – signify an escape from its complete opposite? Why choose this new identify at all? And anyway, why go to the extreme lengths of choosing to live under a different name if all you are escaping from is a love affair?


Bit by bit, the rest of the work slots into place. Throughout the song, sung by a woman of course, the lover is simply referred to as “you”, and only revealed as a man when he has changed identity. Theirs – the lesbian relationship – was the fine “and true” romance, as opposed to the heterosexual sham relationship the lover entered into subsequently. Then was the “age of no regret” – before “Harry” (Harriet? we can only guess) took the momentous decision. No wonder the singer could only smile like Mona Lisa as they went out to get plastered before the fateful act. No wonder the “chance” felt like “taking the last dance” – it was pretty final. The “fear of flying” referred of course to the flight the lover took in order to get the operation. But the fear of the operation was ultimately outweighed by the dread of ageing as a lesbian in less enlightened times.


No wonder the singer finds it a struggle to recall, in shock and despair, their last summer – the last summer not only for them, but also of her partner as a woman.


For your lover to leave you and have a sex operation is bad enough. For her then to move in with another woman must be beyond endurance.


_________________________________________________________________________


"Our Last Summer"


The summer air was soft and warm

The feeling right, the Paris night

Did its best to please us

And strolling down the Elysee

We had a drink in each cafe

And you

You talked of politics, philosophy and I

Smiled like Mona Lisa

We had our chance

It was a fine and true romance


I can still recall our last summer

I still see it all

Walks along the Seine, laughing in the rain

Our last summer

Memories that remain


We made our way along the river

And we sat down in the grass

By the Eiffel tower

I was so happy we had met

It was the age of no regret

Oh yes

Those crazy years, that was the time

Of the flower-power

But underneath we had a fear of flying

Of getting old, a fear of slowly dying

We took the chance

Like we were dancing our last dance


I can still recall our last summer

I still see it all

In the tourist jam, round the Notre Dame

Our last summer

Walking hand in hand


Paris restaurants

Our last summer

Morning croissants

Living for the day, worries far away

Our last summer

We could laugh and play


And now you're working in a bank

The family man, the football fan

And your name is Harry

How dull it seems

Yet you're the hero of my dreams


I can still recall our last summer

I still see it all

Walks along the Seine, laughing in the rain

Our last summer

Memories that remain

I can still recall our last summer

I still see it all

In the tourist jam, round the Notre Dame

Our last summer

Walking hand in hand

Paris restaurants

Our last summer

Morning croissants

We were living for the day, worries far away...


[fade]


By the editor, Feb 27 2020 01:26PM


What does “freedom of movement” mean to people? In the UK, I think it is generally regarded as a mixture of good and bad, depending on political views: as having the advantage of allowing people to work, study, and otherwise move across Europe with ease, and giving us access to the EU’s single market; and having the disadvantage of inhibiting the country from imposing its own limits on immigration. Some see it as all advantage, and others as all disadvantage, and some see it as a mixed bag. Few politicians would dare to claim it was an unalloyed good. To the extent that it is seen as good, it tends to be for economic and social, rather than political, reasons.


In the institutions of the European Union, and in other European states, I think there is more to it than this, and worth reflecting on why, and what the implications of that are.


As far as the European Parliament is concerned, “freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship”, and it goes further, stating that the Schengen area (which many in the UK regard as having gone much too far) “is widely regarded as one of the primary achievements of the European Union”, despite acknowledging the strains it placed on the EU from migrants and refugees from elsewhere (https://www.europarl.europa.eu/factsheets/en/sheet/147/free-movement-of-persons). The European Commission refers to it as a “fundamental principle” (https://ec.europa.eu/social/main.jsp?catId=457). This Commission press release refers to evidence that “more than two thirds of Europeans say that free movement is beneficial for their country”: https://ec.europa.eu/commission/presscorner/detail/en/IP_13_1151.


The implementation of the principle of freedom of movement was undertaken gradually, affecting limited categories of workers to start with, only applying to all workers within EEC states from 1968, and given wider application to all citizens from 2004. Nevertheless, there is an aspect to the principle that seems to be intrinsic to the project as a whole, and not just its economic functioning.


Freedom of movement is of course restricted by borders, and borders in mainland Europe shifted considerably over the centuries, particularly after wars. After the First World War, and the disintegration of several empires, there was a concerted attempt for the first time to impose new borders to differentiate “nation states”. Whatever the rights and wrongs of this, it obviously created difficulties that were hard to resolve. What if there was an area including people from more than one nation? How should a person’s nationality be determined? What if populations changed?


It is often noted that the creation of the EU (as it is now) was inspired by a wish to bind countries closer together to avoid the horrors of the Second World War. But there were plenty of other tragedies throughout the 20th century arising from attempts to impose borders and force people out of the wrong areas and into the right ones. Instead of freedom of movement, much of the history of that century was one of forced movement – often what has since become known as “ethnic cleansing”. The following are examples, but this list is by no means exhaustive:

• 1.5 million Armenians were forced into the deserts of Syria and Iraq by the Ottoman Empire in 1915-16, around a half of whom died as a result.

• 100,000 German-speakers were expelled from Alsace-Lorraine from 1918-21, and many more who remained were persecuted.

• Under the Treaty of Lausanne in 1923, 1.5 million Greeks and Turks were ”exchanged”, most of them forcibly.

• From 1935 to 1938, the Soviet Union deported hundreds of thousands of members of national minorities to Kazakhstan and Uzbekistan.

• Over 12 million Germans were forcibly transferred to Germany after the Second World War, mostly women, children and the elderly, about 1 million dying in the process (some of them tortured, starved, and worked to death in the same camps used for the Holocaust).

• From 1992, Serbia began systematically removing Muslims from Bosnian territory, triggering wars, atrocities, and a sequence of forced population movements, displacing several million people.


Apart from the immense human suffering involved at the time – and forced movement inevitably has a high death rate – there must have been a significant impact on the collective memories of societies affected. Some territories experienced forced movements several times over, and some people found themselves forced to move twice. So for example there were people who were forced out of Germany for being Jewish under the Nazi regime, who were later forced back into Germany for being German. The processes for determining which national or racial group a person belonged to – and so what rights (if any) a person may have – could be complex, bureaucratic, and often illogical. Even the Nazi regime gave up on agreeing a test of “Aryanness”, and eventually left it to local “ethnocrats” outside Germany to decide who should be so classified. After all, what does it mean to be a “German”, or “Pole” or anything else, after decades of shifting borders, population transfers, and mixed parentage?


After decades of this, it’s unsurprising that there’s been an attempt by the countries concerned to soften borders between them, and encourage citizens to live where they want to.


The UK’s borders have been, of course, more or less fixed by the sea (the exception, the Northern Irish border, serves to demonstrate some of the increased difficulties that land borders entail). So although it’s had its own experience of the horrors of the wars of the last century, it hasn’t had the experiences referred to above. It’s notable that one of the most high profile messages of the 2016 EU referendum campaign was a poster of a line of migrants and refugees headed “Breaking Point”. The message being: “this is what happens in other countries – this is what free movement does – we don’t want this here.”


Not all those in favour of leaving the EU share that sentiment of course. Nevertheless, the process of leaving the EU is now firmly in the hands of our current Government. Its chief negotiator is David Frost. His speech of 17 February 2020, setting out the UK Government’s approach to negotiating a new relationship with the EU, was strongly supported by the Prime Minister. The speech referred, approvingly, to a counter-revolution, seeking to reverse the first “transnational” revolution of the EU project:


“The second revolution is of course the reaction to the first – the reappearance on the political scene not just of national feeling but also of the wish for national decision-making and the revival of the nation state. Brexit is the most obvious example for that, but who can deny that we see something a bit like it in different forms across the whole Continent of Europe?”


The “reappearance… of national feeling” is a toned-down way of saying “re-emergence of nationalism”, and the other “forms” being obliquely referred to include the burgeoning far right movements in Germany, France and elsewhere, and the repressive governments of Poland and Hungary.


So the battle lines are drawn for our current “negotiation” with the EU: nationalism against transnationalism. On the one side, a belief that nationalism is a fact of life, and strong borders are needed between nations. On the other, a belief that such feelings can be transcended, and borders can be relaxed, or even abolished. Pessimism versus optimism, or reality versus naivety – depending where you stand.


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