at the time of writing, is allowed in Germany, despite the fact that Article 3 of the German Constitution states that no one must be treated in a disadvantaged or privileged manner due to his/her sex, descent race, language, origin, faith or religious or political opinion or disability. It remains to be seen whether the Koblenz decision will be upheld if the case goes to the Constitutional Court. The case against these checks was on the right to privacy and to self-determination. However, anti-discrimination groups are planning on submitting an amicus brief to the appeal court highlighting equal treatment as a principle that also needs to be considered in the legality of these checks.38 Discussion Germany has traditionally oriented itself towards internal controls that operate once a foreigner is already in the country,39 while the UK has more often focused on policing its external borders.40 The more extensive powers to conduct public identity checks in Germany are part of this legacy. But why did these different systems develop? The first reason is geographical: the UK’s position as an island facilitated controls at the port of entry, while Germany faced the difficulty of patrolling borders with nine countries at varying degrees of economic development. However, having land borders isn’t a sufficient criterion for concentrating on internal policing of migration. Looking internationally, the USA has a long land border with a less economically developed nation (Mexico), but it concentrates far more of its resources on external border control than on internal policing. Geography is only one reason among many. The UK and Germany are also marked by important discursive and cultural differences. Identity cards, which have proven to be so controversial in the UK, are an accepted part of state control in Germany. This is partly built into the British system of law: the so-called Diceyian notion of ‘residual liberty’ in common law implies that everything the citizen does is legal unless explicitly made illegal by government.41 The obligation for citizens to carry and present national ID cards in the UK has been exceptional: measures introduced reluctantly in the two 38. 39. 40. 41. 42. 43. 44. 45. 46. 32 world wars were withdrawn in peacetime as ‘an unacceptable police power’. Decades later, a proposed clause in the Immigration and Citizenship bill 2008 C. 28 (3) to allow the police and UKBA to be able to demand identification from anyone on permission of the Secretary of State was virulently opposed by civil rights groups and condemned in the media. In discussions about the introduction of identity cards, British politicians often compare the love of freedom of British citizens versus the Prussian acceptance of state control.42 The tradition of liberty of which Britons are so proud, could perhaps be tempered by the fact they have tolerated lower levels of freedom for immigrants: ID cards (biometric resident permits) were made mandatory for foreigners in 2008. However, put simply, because not everyone in the UK carries an ID card and is ready to show it, identity checks on suspected foreign nationals are more likely to be seen as discriminatory. By contrast, in Germany accusations of police racism have been centred on maltreatment of ethnic minority youth in custody and not stop and account policies. Arbitrary stop and search approach is facilitated by the fact that personal identification has a long history in Germany and is seen as something ‘normal’.43 There is some logic to this: because most Germans carry their ID cards and are ready to show them, the feeling of discrimination is reduced. However, another, less generous, interpretation might argue that if identity checks were more equally distributed across the population there might be greater public antithesis to these police powers. Furthermore, while British police forces continue to be the subject of intense scrutiny in relation to the way in which police discretion can translate into ethnic disproportionality in stop and search practices,44 German law explicitly allows identity checks for illegal immigration on the basis of racial appearance. Why is there not a greater public and political opposition to this policy? One factor is the role of migrants in British and German societies and the extent of their ‘actual or perceived belonging to the polity’.45 Mass migration to the UK was set against a context of de-colonialisation.46 As a part of the conceptualisation of the colonised as Personal conversation with anti-discrimination activist, July 2010. Vogel, D. (2000). Migration Control in Germany and the United States. International Migration Review 34:390-422. House of Lords Select Committee on the European Communities. (1976-1977). Illegal Immigration. House of Lords Papers 91. Wadham, J. et al. (2006). Blackstone’s Guide to the Identity Cards Act 2006. Oxford Oxford: University Press. In 1977, the Home Affairs Select Committee briefly considered and rejected the idea of ID cards, arguing that identity cards are not ‘acceptable to the British people, who are rather fond of their freedom’ (See Illegal Immigration and Employment, HC Deb 24 June 1977, vol 933, cc1995-2040). Almost thirty years later, David Davis, Shadow Minister for Home Affairs argued that ‘the reason the common law countries are unique in this respect is that they are the countries which presume that the citizen is free to do anything unless there is a law against it. That is rather different from the Napoleonic law countries’ (See House of Commons Hansard Debate for 25 June 2005 p. 14). Vogel, D. et al (2009) ibid. Bowling, B. & Phillips, C. (2003). Policing ethnic minority communities. p. 528-555 in Handbook of Policing, edited by T. Newburn. Devon, UK: Willan Publishing. Solanke, I. (2005). The Evoluntion of Anti-Racial Discrimination Law in the United Kingdom, Germany and the European Union. Department of Law, University of London, London p. 29, 145. Spencer, I. (1997). British Immigration Policy since 1939: The Making of Multi-Racial Britain. London: Routledge. Prison Service Journal Issue 205