I would like to congratulate the Commission for Racial Equality on the occasion of its thirtieth anniversary for the valuable work it has done in promoting racial equality in this country. Inevitably, my perspective is that of a lawyer, but the principle of equality is too important to be left solely to the courtroom, and the CRE has always recognised that in its educational work.
One of the reasons for the Race Relations Act was for it to be a ‘speaking act’. It is often cited as a major example of such an act of parliament: a law which seeks to do more than just lay down legal rules, which speaks to society and tries to influence behaviour by laying down a fundamental principle and setting out a vision of what we could become.
Yet there was always a latent, but fundamental, problem with the structure of the Act which prevented it from achieving its full purpose as a speaking act. It did not clearly apply to the public functions of public authorities. In a case called Amin in 1983, it was held by the House of Lords, the highest court in this country, that the Act’s prohibition of racial discrimination did not apply to the exercise of statutory powers by public authorities because it only applied to the kind of services that might also be offered by a private person. This meant that the Act did not apply to such functions as immigration control or policing. So the law took a critical turn away from the fundamental principle of racial equality; while many important parts of social life were covered – notably employment, housing and education – many others were not. Most of the things that the state does were outside the scope of the law. It was therefore difficult for the state to lead the rest of us by example, given that racial discrimination by the state was, by and large, lawful.
It was, in part, this gap in the law which led to the findings of the Stephen Lawrence Inquiry Report in 1999 that the Metropolitan Police had been guilty of ‘institutional racism’. One of the main recommendations that followed was that the Act should be amended to cover the work of public authorities. This was duly done by parliament in the Race Relations (Amendment) Act 2000. This has had a salutary effect on public authorities, including central government. With a few limited exceptions, it is now unlawful to discriminate on racial grounds when public authorities exercise their public functions.
The Home Office was found to have breached the new law in its immigration functions, following a case brought by the European Roma Rights Centre; the House of Lords held that the immigration authorities at Prague Airport had unlawfully discriminated between Czech citizens of Roma origin and those of other origins. One of the judges, Baroness Hale of Richmond, emphasised the fundamental importance of the Act: that it requires society to treat each person as an individual on their own merits, not on the basis of stereotypes associated with a racial group to which they happen to belong.
In the recent case of Elias, the Court of Appeal held that the Ministry of Defence had unjustifiably discriminated on grounds of national origins when it devised a scheme to give ex gratia compensation to civilians who were interned by Japan during the Second World War. Mrs Elias was a British subject at the time of her internment and appalling treatment and she was now a British citizen living in the UK. Nevertheless, she was refused compensation because she was not born in the UK, and she did not have a parent or grandparent born in the UK either. As she told the Court in her witness statement, she was regarded as British for the purpose of her detention but not British enough to be compensated for it.
The 2000 Amendment Act made another fundamental change to the law, again in response to a recommendation in the Stephen Lawrence Inquiry Report. It introduced section 71, which imposes a positive duty on public authorities to have due regard to the need to eliminate racial discrimination and to promote equality of opportunity and good race relations. Two ways in which public authorities help to fulfil this positive duty are to have race equality schemes and to carry out race equality impact assessments when formulating policies. It is important that these exercises should not become merely ritualistic and bureaucratic. On the other hand, it is important that they should be carried out at all. In the case of Elias, Lady Justice Arden stressed that it was important that public authorities should carry out their section 71 duty before they develop policies: perhaps an obvious point, but one that was missed in that case itself, where the High Court held that the Ministry of Defence had breached section 71.
Great strides have been made in the last 30 years, but both the law and practical reality have a long way to go before we can say that the purpose of the Race Relations Act has been achieved. Nevertheless, there is reason to be hopeful. The recent changes to the law offer the promise of taking the law in a more positive direction: not confined to the important but limited purpose of securing justice for individuals who are the victims of racial discrimination, but trying to tackle basic structural inequality – particularly when the state exercises power over the individual.
Rabinder Singh QC is a practising barrister at Matrix Chambers in London
© Commission for Racial Equality, 2006