I want to thank St. Antony's College and Princeton University for their invitation. In particular, I would like to thank Polly Friedhoff and Janet Collyer for their assistance. I have been asked to speak about the position of Muslims in Europe after September 11 with special reference to discrimination and legislation. In this paper, I want to do two things. First, I want concentrate on Britain as a case study because my colleagues Valerie is going to be dealing with France and Cem is going to, I hope, speak to the experiences in Germany. I hope that out of the discussion of the position of Muslims within Britain, I'll also be able to say something about the position and the reaction and options as far as public policy is concerned in the European Union. As you will see from my presentation, the European Union context for discussing these issues is becoming increasingly important.

Second, and before moving on to law and policy, I just want to outline the actual reality is of the situations of Muslims in Britain. I think it is important to consider some of the empirical and social science data to get an accurate understanding of the daily life of Muslims. When we examine the social science data, we find the defining experience of large numbers of Muslims in Britain has been one of social exclusion, which is the involuntary exclusion of Muslims from mainstream social, political and economic institutions. More specifically, I think the term social exclusion, which is the preferred term that this government uses in its policy announcements, captures the experience of Muslims as a group who overwhelmingly suffer a combination of linked and overlapping problems. Although the statistics themselves don't categorize Muslims as a distinct group, a focus on ethnic groups such as Pakistanis and Bangladeshis, and increasingly the Somali and Yemeni community, allows us to conclude that Muslims are: at high risk of being victims of crime: i.e. they are more likely to fear crime and they have low levels of satisfaction with the police. They also have disproportionately lower incomes and high rates of unemployment. They have low skills both in education and in vocational training. They suffer from extreme deprived housing situations and disproportionately from bad health. I've got the statistics that are taken from Government sources including the recent Performance Innovation Unit report on ethnic minorities. I don't want to run through this report in detail, but I do want to highlight a number of indicators that are salient. It is significant that Muslims, generally, are more likely to say that they feel unsafe at night both in their homes and walking alone in their neighbourhoods. In the context of social and economic conditions, more than half of all Pakistanis and Bangladeshis, who are a significant part of the Muslim community in Britain, live in the 10 percent of the most deprived wards in England and Scotland. Around one third of these Pakistanis and Bangladeshis live in properties that are deemed 'unfit' within the private sector. Around 30 percent of this community live in the most extremely poor neighbourhoods. The PIU report, clusters minorities into three groups. They say there is disadvantage in relation to some minorities and the Chinese and the African communities. Asian communities fall into that. There is relative disadvantage in relation to the Caribbean community. And the communities that are put in the category of severe, persistent disadvantage are the Pakistani and the Bangladeshi community.

This type of severe social exclusion is involuntary. However, it's my view that extreme social exclusion experienced on a daily basis, can be a major contributory factor to the voluntary social isolation of certain Muslims who prefer to separate themselves from mainstream social, political and economic activity. Social exclusion and social isolation, I think, are factors that have contributed to community breakdown and led to situations similar to those of the riots that were experienced in the north of England in 2001. I would like to suggest that a combination of social exclusion and isolation could erode Muslim identification with national, legal, public and political institutions. I hope to say more about this issue towards the end of my talk. I don't think it an easy connection to establish, but it seems to me that these factors provide a background, and in some cases a catalyst towards, involvement in fringe activity outside mainstream political institutions.

Before moving on to deal with discrimination and legal responses and policy options, I want to say something about the criteria we should use to see when the state is doing a good job in this area. What are the evaluative criteria for judging when the state and its institutions are meeting the standards we want them to meet? The usual standard that we demand from a state in its treatment of citizens is the requirement of justice. And on the whole this tends to be individual justice in the form of individual human rights or civil and political liberty. I want to set out a slightly alternative approach here by adopting a model, which emphasises justice for a group. The choice of this model is motivated partly by the fact that I have been asked to reflect on the position of Muslims. The model draws on the work of Iris Marion Young. It seemed especially appropriate because Professor Young spent some time as a visiting scholar at the Centre for Human Values at Princeton. It struck me as being particularly appropriate that I should use ideas that have a connection with Princeton and the Centre of Human Values with its deep commitment to the values of liberal constitutionalism and justice. Professor Young’s concept of justice focuses on groups. I have a great deal of sympathy Sami Zubaida's point yesterday about the difficulties of defining group, but in the context of legal action and policy interventions these conceptual difficulties often have to give way to the pragmatic need to develop solutions to pressing problems. I want to assume for these purposes that we can define groups in a reasonably coherent way and that we are able to talk intelligently about Muslims as a collective entity. Professor Young identifies a number of factors can be used as the criteria for determining when a particular group. First, a group is oppressed when they suffer systematic violence, that is where one group is targeted and experiences violence because of their membership of that group. Second, a group is oppressed when they experience exploitation which is the transfer of the results of the labour of one social group to another, e.g. unskilled or marginal workers in a low paid profession have the results of their labour transferred in a disproportionate way to those occupying more privileged employment positions. Third, a group is oppressed when they experience marginalization, i.e where they are either excluded or are expelled from useful participation in the economic, political, cultural and institutional life of the society. In addition, the lack of power over one's own ability to control participation in economic activity is another feature of oppression. Fourth, Professor Young emphasizes cultural alienation as an important factor in the oppression of a particular group. She defines cultural alienation as the experience among one group that (a) they cannot identify with the dominant meanings in their society and (b) the feeling that the perspective of their own group is either stereotyped, distorted or rendered invisible within the dominant discourse of the public culture of their community. It is the co-existence of both these feelings that contributes to cultural alienation and makes it such a powerful source of oppression for a group. This captures the way in which an oppressed group feels culturally alienated experiences because they're invisible within the public culture and public dominant discourse in their society. Paradoxically, when their experiences are included within the public domain they are stereotyped or distorted in a way that is experienced as demeaning for the group.

What is the impact of September the 11th on all this? As I've already argued, the situation of Muslims in Britain pre-September 11 was characterised by extreme poverty and alienation, which in some cases creates the risk social isolation. The impact of September 11 is that contributes to a discourse surrounding Islam and Muslims which links it to extremism, terrorism and violence. The predominant paradigm for the public discourse surrounding Islam and Muslims is one of security issues and the ‘war against terrorism’. There are legitimate security concerns, which have to be acknowledged in any reasonable debate on the post September 11 situation. It has to be recognized that the state, the United States and the European Union member states, will have to undertake heavier policing of the Muslim community similar to the heavier policing of the Irish community during the period of attacks by the IRA in the UK. I don’t want to consider these issues here because there is a distinct session within the conference on these issues. However, this issue is also relevant to the discussion of discrimination and legal responses for a number of reasons. One of the consequences of the overlap in the public discourse on Islam/Muslims and violence/terrorism is that it will contribute to existing prejudice against Muslims within Britain. There are two questions that I want to consider: first what is the form and harm of such prejudice; and second, what is the state response to this harm. The consequences of an increase in prejudice against Muslims can be divided into a number of different themes.

Firstly, obviously, is the increase in ‘hate speech’. People will manifest, in their ideas and in speech, certain pejorative views about Islam and Muslims. This will manifest itself in private ideas and private speech, but it will also manifest itself in public speech. One argument that is made is that this public speech can sometimes cause harm because it is hate speech against Muslims. It incites certain individuals into specific acts of violence against Muslims and their property but it can also be a vilification of Muslims. This is clearly a serious harm. Moreover, lesser forms of hate speech can also be a ‘vilification’ of Muslims which can cause harm by denigrating an important source of self-respect for Muslims. Legal responses vary from calls to extension of the laws of blasphemy or regulation using the criminal law in the form of incitement to racial hatred or religious hatred legislation. My own view is that any regulation of public speech, if there is to be regulation at all, should be narrow and controlled. In the U.S. constitutional model, with its deep commitment to free speech, hate speech is not regulated in most circumstances. The criminal law should be used in only the most extreme cases where there is a risk of either physical violence or public disorder that this sort of activity should be regulated. Moreover, the extension of the law of blasphemy is not an appropriate response to the problems of hate speech against Muslims. Rather than extending the law of blasphemy to include groups such as Muslims, the Government should consider the abolition of the offence and consider dealing with the problem via incitement to religious hatred provisions, which at present do not cover non-ethnic religious minorities such as Muslims. The grievances of Muslims faced with hate speech and vilification against them as a group should be addressed using non-legal policy options. For example, investment that builds the capacity of Muslims to intervene in public discourse to be able to defend their group and faith; to be able to communicate what they consider to be the truth of their religion within the public sphere. The solution to the problem of the vilification of Muslims is to enable Muslims to enter into public debate: in short, what is needed is more speech rather than the regulation of free speech.

One of the consequences of increased prejudice, and hate speech, is the risk of greater violence against Muslims. This is the first category used by Professor Young to identify the oppression of a group. Despite a slightly mixed picture in France, it seems clear that there has been an increase in religious aggravated crime throughout Europe, including Britain. It should also be noted that it is immensely difficult to isolate whether the motivation for violence and discrimination is solely religion or whether it is a combination of race and religion. However, it seems reasonable to include that there has been some increase in violent attacks against Muslims and their religious institutions. The response of the State to this harm to Muslims as a group has been promising. Pre-September the 11th, racially aggravated crime was a criminal offence but as a non-ethnic religious minority Muslims were not specifically protected by the legislation. After September 11 the Home Secretary specifically introduced within the terrorism legislation, in December 2001, came into force 2002, an extension of this criminal offence to include religiously motivated crime. The British government has acted very responsibly in relation to protecting its Muslims citizens in this area. However, some further efforts could be made to encourage law enforcement agencies within the criminal justice system to enforce the criminal law. Within these agencies, law enforcement officers such as the police and prosecutors have discretion. Some effort needs to be made to ensure that an increase in prejudice against Muslims generally does not manifest itself in discriminatory conduct by law enforcement agents within the criminal justice system. Issues that need to be considered include the treatment of Muslims by the police; the priority that the system gives to prosecuting anti-Muslim hate crimes; and the treatment of these issues by judges and juries. I think that a real effort can be made. My own experience is that the Home Office and the Lord Chancellor's Department are making a serious effort to deal with the risk of anti-Muslim discrimination of this type, but pressure should be maintained to ensure more progress in this important area.

The second area in which post-September the 11th, stereotypes and prejudices will cause a problem is in the area of discrimination in the public sector and by private actors: in employment; housing; education and other types of services that Muslims need. Britain has had race relation’s legislation prohibiting this type of discrimination since the 1960s. However, the legislation arbitrarily distinguishes between ethnic religious minorities that can fall within the category of racial forms (such as Jews and Sikhs) and non-ethnic minorities (such as Muslims and Rastafarians). This anomaly has meant that Muslims have not been fully protected against religious discrimination in employment and other area. The introduction of a European Union directive, which may be implemented by the end of the year, will end religious discrimination. However, this legislation is limited to employment and training. It will not cover all the other areas that at the moment are covered by the race relations legislation such as the Race Relations Act 1976 or the Race Relations Amendment Act 2000. Therefore, unlike ethnic religious minorities who will enjoy protection in a wide range of areas, Muslims will not be protected against discrimination in areas such as delivery of public services, housing and education. It is especially unfortunate that the legislation doesn't cover Muslims in the delivery of public services. As a deprived group, Muslims are heavy users of public services. One of the key sources of Muslim national identification is that they see the state as providing them with public services. Discrimination in this sphere is therefore especially unfortunate. Legislation such as the Race Relations Amendment Act 200 could be usefully directed towards remedying the problem of social exclusion. Muslim demands for accommodation in this area are rarely grandiose demands here. They include such reasonable calls as asking for local swimming pools to set aside one afternoon for women only swimming, because of the particular needs for modesty of Muslim women or remembering that Friday one o'clock is not a good time to schedule out patient appointments in the NHS in the East End of London, because most Bangladeshis will be at the mosque for Friday prayers.

I've said something about cultural alienation of Muslims, which is a problem likely to be exacerbated by September 11. The main discourse linking Islam/Muslims with terrorism/violence is bound to increase the sense of many Muslims that they and their faith are distorted in the public sphere. Although a liberal state can control the thought and speech of its citizens directly, it can use non-legal intervention to remedy prejudice and distortion. Moreover, the liberal state has a legitimate interest in restructuring the public sphere in a way that does not alienate large numbers of people who are citizens of that state. Such a policy will require some intervention and allocation of resources by the state to build capacity within the Muslim community and make available within the public space areas in which Muslims can undertake debate and dialogue with the majority community. This debate is the first step towards reaching a consensus about the terms on which Muslims will be accommodated within the liberal state. Multiculturalism is a two-way process, which creates responsibility for adjustment not only for the majority but also the Muslim community. It's a two-way process. Too often Muslims have expected the majority to accommodate their needs without being willing to accept that they must adjusts themselves to the basic values of liberal constitutionalism and a respect for individual rights which are a part of liberal democracies. There are some who may think these values are incompatible with Islam. However, there are very many others who are convinced that Islam contains within itself the resources to adjust itself to liberal constitutionalism and human rights. Scholars such as Professor Hashim Kamali whose work on constitutionalism and human rights in Islam is one example of this tradition. In seeking an accurate picture of Islam, it is unfortunate, that the media chooses to go to commentators such as Abu Hamza, who has no standing or respect as a scholar of Islam, rather than established scholars, such Professor Kamali.

The discussion so far has suggested that an increase in oppression, as defined by Iris Marion Young, in the form of violence, exploitation, marginalization and cultural alienation of Muslims, may occur after September 11. However, I have also suggested that isn't inevitable. There are legal and policy options available to us, both in a domestic level and especially at the EU level, which can allow the state to do justice to its Muslims citizens whilst at the same time pursuing its essential security aims.

The US response to September 11 has been disappointing in many respects. Many of us are disappointed at the deference that has been shown by the legal system and the civil liberties lobbies for the erosion of civil liberties (e.g. the denial of rights and treatment of prisoners at Guantanomo Bay; and the Patriot Acts) by the executive. However, once the initial reaction to September 11 has passed, the US will have an opportunity to reassert its long-standing tradition of constitutionalism by respecting the rights of Muslims within its jurisdiction.

In the meantime, within Europe we need to forge ahead with a specifically European response to the new problems posed by September 11.

In developing responses to Muslims in Europe and the US after September 11 there is an important role of legal and policy responses. It is important to develop practical solutions to urgent problems that will deliver results in the short term. However, this focus on pragmatism should not prevent us from giving a central place to the importance of ideas. In seeking to preserve the values of liberal constitutionalism and individual rights, ideas matter. Professor Young’s model of group justice has allowed us to understand the risks posed by September 11 for Muslims and to identify appropriate solutions. These ideas were developed within the context of an intellectual commitment to human values and justice. The St Antony’s – Princeton seminar provides an ideal opportunity for the development of these ideas. Solutions to the problems faced by Muslims in Europe and the US in the aftermath of September 11 must be based on the type of intellectual enquiry which is nurtured in both these academic institutions.

Ms Maleiha Malik

April 2003