Anti-discrimination legislation.

GCSE Religious Studies (Philosophy & Ethics)

Thank you for coming to listen to this presentation. The subject I am going to be talking about is the Race Relations Policies; I will also be talking about the origins of anti-discrimination legislation, the genesis of race relations policies and the 1976 Race Relations Act.

The three major Race Relations Acts passed since 1965 have been highly controversial and have aroused the opposition of those who see them as an attempt to give favourable treatment to blacks over whites in the search for jobs, homes and other goods. This kind of opposition has boiled over into open calls for the dismantling of the major institutions of what is sometimes called the race relations industry.

Now I am briefly going to talk about the origins of anti-discrimination legislation

From the 1950’s the question of what to do to counter racial discrimination emerged as a major dilemma in debates about immigration and race relations. Even in the early stages of black immigration there was awareness that in the longer term the question of racial discrimination was likely to become a volatile political issue. In the early stages of post-war black immigration political debates about race were centred upon the question of immigration controls. However, an underlying concern, even at that stage, was the question of future race relations. The notion that the arrival of too many black immigrants would lead to problems in relation to housing and employment.

In the context of the intense debate about immigration during the late 1950’s, for example, the Labour Party set up a working party to look at the question of legislation to combat racial discrimination, and instructed it to make practical legislative proposals.

Two problems were usually seen as in need of urgent attention. First, the negative response of the majority white population to the competition of black workers in the housing and labour markets. Second, the frustration of black workers who felt themselves excluded from equal participation in British society by the development of a colour bar in the labour and housing markets, along with related processes of discrimination.

Both these issues were perceived as potential sources of conflict which the government had to manage and control through direct intervention.

The genesis of race relations policies

The first attempts to deal with potential racial conflict and tackle racial discrimination can be traced back to the 1960’s, and took two basic forms. The first involved the setting up of welfare agencies to deal with the problems faced by black immigrants and to help the white communities understand the immigrants. The second stage of the policy response began with the passage of the 1965 and 1968 Race Relations Acts, and was premised on the notion that the state should attempt to ban discrimination on the basis of race, colour or ethnic origin through legal sanctions and public regulatory agencies charged with the task of promoting greater equality of opportunity.

In 1965, the same year as the white paper, the Labour government passed the first Race Relations Act, which articulated the principle of ending discrimination against black immigrants, and their descendants, on the grounds of race. Although fairly limited in its scope the Act was important in establishing the concern of the state with racial discrimination and as an affirmation of the broad objective of using legislative action to achieve ‘good race relations’.

The Race Relations Acts of 1965 and 1968 were based on the twin assumptions of

setting up special bodies to deal with the problems faced by immigrants in relation to discrimination, social adjustment and welfare and

helping to educate the population as a whole about race relations, and hence minimising the risk of racialised conflict developing in Britain in the way it had done in the US.

The basis of these assumptions lay in the notion that too many black immigrants could result in racial conflict. Additionally, however, the numbers game was tied ...

This is a preview of the whole essay

The Race Relations Acts of 1965 and 1968 were based on the twin assumptions of

setting up special bodies to deal with the problems faced by immigrants in relation to discrimination, social adjustment and welfare and

helping to educate the population as a whole about race relations, and hence minimising the risk of racialised conflict developing in Britain in the way it had done in the US.

The basis of these assumptions lay in the notion that too many black immigrants could result in racial conflict. Additionally, however, the numbers game was tied to the idea that the cultural differences between the immigrants and the host population were a potential source of conflict. From 1962 onwards both the Conservative and Labour Parties accepted the need for immigration restrictions to be balanced by measures to bring about integration in housing, education, employment and the social services.

Significantly however, successive governments did not seek to use mainstream government departments to tackle this issue. While the Home Office was directly responsible for the enforcement of strict immigration controls, the responsibility for enforcing the 1965 and 1968 Race Relations Acts was given to regulatory agencies and the judicial system. The 1965 Act set up the Race Relations Board, while the 1968 Act set up the Community Relations Commission and strengthened the powers of the Race Relations Board in dealing with complaints of discrimination. From 1965 to 1975 successive governments left the issue of tackling racial discrimination to these bodies, and there was

little direction or support provided by central government itself.

Now I will discuss the issues and criticisms of the 1976 Race Relations Act

Critics of the 1965 and 1968 Race Relations Acts pointed out that these early attempts to tackle racial discrimination were limited both in their intention and their impact. By the early 1970’s critics of the 1960’s legislation were calling for a new and more effective strategy to tackle racial discrimination, particularly in areas such as employment. At the same time research on aspects of racial discrimination by a number of bodies showed that high levels of discrimination persisted, and this was taken to imply that the efforts of successive governments from 1965 onwards had produced little or no change.

The debate about the effectiveness of the 1965 and 1968 Acts raged throughout the early seventies, and began to have an impact on the organisations charged with implementing the legislation. The Race Relations Board, for example, produced a critical analysis of the operation of race relations legislation which argued, among other things, that the 1968 Act was very limited in its effectiveness because of its concentration on individual forms of discrimination and the lack of resources for implementing the law fully. It also argued that racial discrimination was less a matter of active discrimination against individuals than the reproduction of ‘situations in which equality of opportunity is consciously or unconsciously denied’. At the same time the Select Committee on Race Relations and Immigration launched a major investigation which produced a major report, The Organisation of Race Relations Administration, in 1975.

Though this report looked at the situation from an administrative angle, it helped put a number of arguments on the political agenda. The most important of these arguments were

the need to go beyond the narrow definition of discrimination used in the 1965 and 1968 Acts in order to include institutionalised or unintended forms of discrimination

the need to strengthen the administrative structures and legal powers of the Race Relations Board in order to allow for a more effective implementation of anti-discrimination policies, including penalties for those found guilty of discrimination.

Taken together these assumptions were seen to support the need for stronger action by government to promote equal opportunity because as stated by the Select Committee in 1975, ‘there is a growing lack of confidence in the effectiveness of government action and, in the case of some groups such as young West Indians, this lack of confidence can turn into hostile resentment’. In addition they were seen as supporting the need for more efficient social policies on race in order to achieve the original aim announced by Roy Jenkins during the 1960’s: namely, the achievement of a genuinely integrated society where there was ‘equal opportunity, accompanied by cultural diversity in an atmosphere of mutual tolerance.’

More fundamentally perhaps, the evidence that went into these reports had a major impact on the white paper on Racial Discrimination, which was published in September 1975. This accepted the relative failure of past policies to achieve fundamental changes, the need for stronger legislation and the need for a ‘coherent and coordinated policy over a large field of influence involving many government Departments, local authorities, the existing and future statutory bodies concerned with the subject and, indeed, many individuals in positions of responsibility and influence’. It also accepted the need for a broader governmental role in tackling those ‘more complex situations of accumulated disadvantages and of the effects of past discrimination.’ The rationale for this emphasis, according to the white paper, was the recognition by the government that the majority of the black population was ‘here to stay’ and that policies had to be based on recognition of this fundamental principle.

In the resulting legislative proposal, the emphasis was placed on changing the legislative and administrative framework, while the wider changes promised in the Select Committee report and the white paper were put to one side. Against this background the 1976 Race Relations Act ‘represented a strengthening and extension of existing anti-discrimination policy rather than a new and unfamiliar policy’.

The most important innovations were

an extension of the objectives of law to cover not only intentional discrimination but racial disadvantage brought about by systemic racism,

reorganisation of the Race Relations Board and the Community Relations Commission into a joint agency, the Commission for Racial Equality, hereafter I will abbreviate this to CRE, and

a different procedure for the handling of individual complaints about discrimination, which in the case of employment cases were to be handled directly by the industrial tribunals rather than processed through the CRE.

The first innovation was intended to overcome the problem of proving the existence of institutional filter processes that were biased against minority workers. While direct discrimination was defined by the 1976 Act quite straightforwardly as arising ‘where a person treats another person less favourably on racial grounds than he treats, or would treat, someone else’, it also put on the statute book the category of indirect discrimination. This was defined as consisting of treatment which may be described as equal in a formal sense as between different racial groups, but discriminatory in its effect on one particular racial group.

The introduction of the concept of indirect discrimination into race relations legislation was partly based on the American experience of affirmative action against institutionalised forms of racism, which was widely commented upon during the immediate period leading up to the 1976 Act. Indeed, according to one account, both the American programmes based on the Civil Rights Act of 1964 and the post-1976 British concern with indirect discrimination were attempts ‘to circumvent the problems of proof of intentional discrimination, to go beyond its individualised nature, and to provide a basis for intervening against the present effects of the past and other types of institutional discrimination’.

Section 3 of the Race Relations Act 1976 bans discrimination on the basis of colour, race, nationality or ethnic or national origins. The leading case on the interpretation of ‘ethnic origins’ is that of Mandla v. Dowell Lee [1983]. The issue was whether a Sikh father who wished his son to be able to wear a turban as a pupil in a private school was entitled to the law’s protection against indirect discrimination. The House of Lords decided in his favour. The court held that for a group to constitute an ‘ethnic group’ for the purposes of the 1976 Act it had to regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics, two of which were essential. First, it had to have a long shared history, of which the group was conscious as distinguishing it from other groups and second it had to have a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. Characteristics of geography, language and literature might be relevant though not essential.

The second innovation, the setting up of the CRE, resulted from the experience of the organisational management of anti-discrimination policies during the period 1965-75. The setting up of an agency that combined roles previously held by the Community Relations Commission and the Race Relations Board was seen as paving the way for a more coherent implementation of the law and the promotion of equality of opportunity and good race relations.

The CRE was seen as having three main duties:

to work toward the elimination of discrimination,

to promote equality of opportunity and good race relations and

to keep under review the working of the Act and draw up proposals for amending it.

Under the first two headings the CRE was empowered to carry out formal investigations into organisations where it believed unlawful discrimination was taking place, to help individual complainants in cases of discrimination and to issue codes of practice containing guidance about the elimination of discrimination in the field of employment. In addition the CRE was to carry out promotional work aimed at bringing about changes in both the attitudes and behaviour of employees toward minorities.

As I mentioned earlier, the third major innovation introduced by the 1976 Act was to allow individuals direct access to courts or industrial tribunals to obtain redress in respect of complaints under the Act. Although the CRE could offer individuals assistance in carrying through their complaint, direct access to industrial tribunals was seen as providing a stronger basis for a legal strategy against discrimination in employment to complement the work of the CRE.

From policy to practice

Given these stated objectives, and the government’s promise of an effective race relations policy, it may seem surprising that since the 1976 Act came into force much of the discussion has focused on the disjuncture between its objectives and its actual impact. Even Lord Scarman’s sober report on urban unrest during 1981 pointed out that policies had failed to make a major impact on the roots of racial disadvantage.

While the Act seemed to promise radical changes, the transition of broad objectives into practice has not been easy.

Almost all the academic research that has been done on the effectiveness of the 1976 Act has pointed to three ways in which policies proved to be ineffective in tackling racial inequality. First, the machinery set up to implement the Act had not functioned effectively. Second, the policies did not produce the intended results. Third, the policies failed to meet the expectations of the black communities.

Proposals for reform

During the 1980’s and the early 1990’s a number of bodies, including the CRE, lobbied for a major reorganisation of the administration of race relations policies, a stronger central government lead and a major radical programme of action to tackle the root causes of racial inequality.

In the absence of a strong lead from central government the CRE has attempted to innovate within the terms of its powers. One of the major innovations introduced by the CRE during the early 1980’s was a code of practice for the elimination of discrimination in employment, which came into force in April 1984.

Therefore in Conclusion

Whatever the outcome of this debate in the next few years, it is clear that the law is not likely to be the sole or perhaps even the single most relevant instrument in the fight for a fairer and more just society in Britain. Therefore, whilst the law and the Commission for Racial Equality have obvious limitations, for the moment and for the foreseeable future they remain important weapons in the fight against racial discrimination. It has been now over two decades since in 1976 Race Relations Act came into force, and there is little ground for arguing that it has achieved in practice the kind of radical changes which it promised.