Richard Mawrey, QC, Deputy High Court Judge

Institutional racism: “The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.” (The Macpherson report, para. 6.34).

“Let justice be done though the heavens fall”, Deputy High Court Judge, Richard Mawrey declared as he delivered a recent ruling which voided Lutfur Rahman’s reelection as Mayor of Tower Hamlets on 22 May 2014. Almost 37,000 people voted for Rahman in an election which saw a record turnout. In a 200 page judgement, Mawrey found Rahman guilty of a series of corrupt and illegal practices. But this verdict is not just. It rests on a failure to understand the meaning and extent of racism in Britain today and is itself based on racist and Islamophobic reasoning. How can Muslims in Britain be expected to have faith in a legal system that produces a judgement such as this?

Mawrey denies Bangladeshis are a “beleaguered minority” due to their relatively large size (32%) within the borders of Tower Hamlets and deduces that they are therefore not subject to “hostile racial prejudice”. Yet it is not the number of individuals belonging to a particular group in a borough that makes them a minority, but their presence as a racialised community within a broader political context of oppression. Had Mawrey sought to substantiate his claim, he might have come across the swathes of evidence demonstrating that the Bangladeshi community is subject to extreme economic and other forms of structural oppression. Met Police Service figures show that between April 2012 and September 2014, 100 “Islamophobic” hate crimes were recorded in Tower Hamlets, more than in any other London borough.

Mawrey’s downplaying of racism is not merely a matter of ignorance, but connects to a broader political agenda, manifested in his discussion of institutional racism. He expresses sympathy for the view that “the imputation of ‘institutional racism’ made by the Macpherson Enquiry, albeit 16 years ago, still dogs the [Police] Force” and acts as a hindrance to the proper carrying out of their work. For a judge to regret that the police force, or any organisation, might be concerned about institutional racism is unprofessional and dangerous. The origins of the Macpherson report lie in the Met’s failure to competently investigate the racially motivated murder of Stephen Lawrence. Mawrey’s comment is not only reckless in its dismissal of the importance of identifying and tackling institutional racism, but is also entirely out of touch with reality. Allegations of police racism have not subsided in the 16 years since the Macpherson Inquiry. In 2013, the Metropolitan Black Police Association declared that the force was still “institutionally racist”, an allegation that has gathered momentum following the recent revelations in the Ellison report that the Met police spied on Stephen Lawrence’s family. Black people are 6 times as likely to be stopped and searched, and Asian people twice as likely, as their white counterparts. In 2013, Stephen Lawrence’s brother, Stuart, lodged a racism complaint after having been stopped in his car by police 25 times.

Mawrey not only believes that the existence of racism is overplayed, but also that those who ‘call out’ racists, are merely “playing the race card”. He characterises the 1993 election of BNP councillor Derek Beackon as having elicited a reaction “bordering on hysteria” amongst Tower Hamlets politicians and was “used, for decades afterwards, to justify the claim that racism stalked the Borough and that only constant vigilance would prevent Tower Hamlets from becoming a fascist, not to say Nazi, outpost”. Mawrey deems “the BNP and later the EDL” to have been “a very useful bogeyman with which to affright the citizens, especially the non-white citizens, of Tower Hamlets”. Yet there is much cause for Tower Hamlets residents to maintain a vigilant attitude towards racism. The EDL have three times marched through the borough. Beackon was the first of scores of BNP candidates to achieve electoral success. His win came shortly after the murder of Stephen Lawrence. After the BNP established their headquarters in South East London, the area saw a spate of racist murders, including that of Lawrence. Considering this context, for Mawrey to sneer at “hysterical” anti-racist campaigners is not only facetious, but also significantly underplays the prevalence of racism in the borough. This glib and insinuating tone runs throughout the judgement and is indicative of Mawrey’s systematic trivialisation of racism.

Thus, Mawrey disparages dog-whistle politics, congratulating the “wise folk of the Oxford English Dictionary” (OED) for not deigning to define it. He turns to Wikipedia and notes that dog-whistle politics is “political messaging employing coded language that appears to mean one thing … but has another additional, different or more specific resonance for a targeted subgroup”. ‘The advantage of the cliché”, he opines, “is that one may take a completely innocent, indeed anodyne, statement of a political opponent and claim that it contains a ‘coded’ message often … of a racist nature”. For Mawrey, to accuse a politician of dog-whistling is always to cry wolf. In the face of the increasing popularity of anti-immigration parties such as UKIP and the number of its members who are suspended for making racist remarks, it is naive to deny the existence of dog-whistle politics, a point even the right wing press acknowledges.

Most disturbing is Mawrey’s adoption of racist reasoning. The perception that Muslims are of inferior mind runs throughout the judgement. On finding Rahman guilty of “undue spiritual influence”, Mawrey draws a comparison with the use of this offence to overturn the votes of Irish Catholics in the 1800s.“Time and again”, he says,

it was stressed that the Catholic voters were men of simple faith, usually much less well educated than the clergy who were influencing them, and men whose natural instinct would be to obey the orders of their priests … This principle still holds good … [A] distinction must be made between a sophisticated, highly educated and politically literate community and a community which is traditional, respectful of authority and, possibly, not fully integrated with the other communities living in the same area … [I]t is the character of the person sought to be influenced that is key to whether influence has been applied.

From this he concludes that “[i]t would be wrong … to treat Tower Hamlets’ Muslim community by the standards of a secular and largely agnostic metropolitan elite”. The suggestion is that the typical Muslim voter is not capable of the rational judgement and circumspection of her “White-British” counterpart.

Mawrey cannot claim ignorance of the meaning of ‘racism’. He includes the OED definition in the judgement: racism is

a belief that one’s own racial or ethnic group is superior … also a belief that the members of different racial of ethnic groups possess specific characteristics, abilities, or qualities which can be compared and evaluated. Hence prejudice, discrimination, or antagonism directed against people of other racial or ethnic groups (or, more widely, of other nationalities), esp. based on such beliefs.

Mawrey’s reasoning that Tower Hamlets’ Bangladeshi community, like the 19th century Irish, have a “natural instinct” to obey orders, are “less well educated” and not “politically literate”, and should be treated according to different standards than a “secular and largely agnostic metropolitan elite”, fits comfortably within the OED definition of racism.

Mawrey did not include the definition in order to be judged against it himself, but in order to test the allegation that Lutfur Rahman made “false statements” that John Biggs, the Labour mayoral candidate, was a racist. Mawrey sees no racism in Biggs’ claim that,

[a]ll [Rahman’s] councillors are from the Bangladeshi community and the primary focus of his policy making has been on the Bangladeshi community … what we don’t want to have is small communities that are separate from each other and are very inward looking because the world will pass them by.

Mawrey found the statement not to be “racially insensitive” and this laid Rahman open to a guilty verdict. Yet if we consider the reality of everyday racism — subtle, commonplace forms of discrimination — and of dog-whistle politics, we can see the racism in Biggs’s comment. It plays to a stereotype of the Bangladeshi community. The message is that Bangladeshis are the problem: their leaders are corrupt, their failure to ‘integrate’ is a result of their preference for an “inward looking” lifestyle, they are ignored by the world because of their own deficiencies rather than because they are victims of structural discrimination and Islamophobia. This is the very same reasoning about Bangladeshi Muslims that is reproduced in Mawrey’s judgment and that made their votes so expendable.

Surely a judge who not only believes the existence of racism to be overplayed, but also employs racist reasoning himself, cannot be trusted to ascertain the guilt of a Muslim and to accurately determine allegations of racism. That a judge can expound the view that the “natural instinct” of Muslims is to defer to their religious leaders and that Bangladeshis are a “less sophisticated” and “less well-educated” people begs the question as to whether the accusation of institutional racism that Mawrey so derides cannot also be laid at the door of the judiciary and the legal system it is tasked with upholding.

Nadine El-​Enany is Lecturer in Law, Birkbeck Law School, University of London. @NadineElEnany

An abridged version of this piece was previously published by www.lrb.co.uk.