Race_Relatiobs_Act

Now I will discuss the issues and criticisms of the 1976 Race Relations Act 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 (a) 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 (b) 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 (a) an extension of the objectives of law to cover not only intentional discrimination but racial disadvantage brought about by systemic racism, (b) 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 (c) 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: (a) to work toward the elimination of discrimination, (b) to promote equality of opportunity and good race relations and (c) 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.