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world wars were withdrawn in peacetime as ‘an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
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents