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David Cameron told the Conservative party conference in September: ”I want us to end discrimination and finish the fight for real equality in our country today.” He continued: “people with white sounding names are nearly twice as likely to get call-backs for jobs than people with ethnic sounding names.” Was he aware that discrimination against ethnic minority job applicants at similar levels was revealed in a study carried out by Political and Economic Planning as long ago as 1967? Yet since then anti-discrimination law has proliferated. Does this mean it hasn’t worked?
This year marks the 50th anniversary of the statute which originated equality legislation in Britain: the Race Relations Act 1965. It established the Race Relations Board, which I served as legal adviser for during its whole 10 year existence.
The Equality Act 2010 Act consolidated laws which now extend to eight “protected characteristics”: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief; sex and sexuality. The Act of 2010 combines the effect of 9 statutes and over 100 statutory instruments.
Few would now question the role of the law in promoting equal treatment.Few would now question the role of the law in promoting equal treatment. Yet the original statute was novel not only in its subject matter but also in its approach to enforcement, which had no earlier parallel in Britain. The Labour government which introduced the Race Relations Bill in 1964 had initially provided for criminal penalties for those found guilty of what was to be the crime of racial discrimination. After the Bill was introduced in the House of Commons, however, Roy Jenkins became Home Secretary. He adopted a different approach, putting conciliation rather than punishment in the forefront, and with civil rather than criminal sanctions if conciliation could not be achieved.
This was the model which had been adopted in the USA. In Britain the Campaign against Racial Discrimination (“CARD”) and a sub-committee of the Society of Labour Lawyers had examined the long history of American anti-discrimination strategies. After the anti-slavery states of the North had won the civil war in the 1860s, legislation was introduced to criminalise discriminatory treatment based on supposed racial difference. But criminal sanctions did not work: white juries declined to convict other white people for conduct which they had been brought up to regard as normal and justified.
So the law against discrimination became a dead letter and remained so for nearly a century. After 1945, a few US states, such as New York and Massachusetts, established administrative agencies to investigate complaints of discrimination. Their primary aim was conciliation but they could seek judicial sanctions against perpetrators who failed to provide adequate redress or take action to eliminate discriminatory practices. The enforcement power in the background was crucial.
The British version, however, was by contrast narrow in scope and the sanctions were weak. The Act empowered the new Race Relations Board to investigate complaints through a network of voluntary “conciliation committees” but the prohibition of discrimination on grounds of “colour, race or ethnic or national origins” was restricted to “places of public resort” – hotels, pubs, libraries, public transport, and the like. Timidity and pressure to compromise with fierce political opposition denied its application to employment and housing where discrimination was much more widespread and damaging. Enforcement was virtually non-existent. If conciliation failed the Board’s only power was to refer the matter to the Attorney-General who could then do no more than seek a County Court injunction to restrain future discrimination. In the life of the 1965 Act not a single injunction was even sought, let alone granted.
Enforcement was virtually non-existent. The one saving grace in the 1965 Act was a requirement on the Board to monitor the effect of the new law and report to the Home Secretary on its findings. Two reports were commissioned.
One was the PEP report of 1967, referred to at the beginning of this article. It was a practical survey of the experience of minorities seeking employment, housing, and other services. Three researchers, one native white British, one white of Eastern European origin, and one black from the Caribbean, applied for advertised vacancies claiming equivalent qualifications. The results were recorded and tabulated, demonstrating massively higher rejection rates for the black applicant and higher rejection rates for the non-native white applicant.
The other report was by a committee of three lawyers under the chairmanship of Professor Harry Street of Manchester University. Geoffrey Howe QC (later Lord Howe of Aberavon) and I were the other members. Our main recommendations were predictable: to extend the scope of the law to employment, housing and other services, and to strengthen enforcement powers.
These recommendations were broadly accepted and enacted in the Race Relations Act 1968. The conciliation system was retained but if conciliation failed the Board was itself empowered to seek redress in the County Court. This could include awards of damages as well as injunctions to restrain future discrimination.
The Board over the next 8 years brought a number of County Court cases, mostly successful but with trivial awards of damages (some as low as £5). Several of the cases led to protracted litigation with companies and public authorities who were unwilling to accept adverse findings.
Yet the legislation continued to have serious weaknesses. The absence of effective enforcement encouraged the committees to accept virtually meaningless gestures as amounting to conciliation. In some cases they accepted in settlement nothing more than a bare assurance in such words as “we deny having discriminated but we promise not to do so in the future.”
I cannot recall a single meaningful remedy for any victim of employment discrimination under the 1968 Act. In employment cases the position was even more pathetic. Conciliation had to be carried out not by the Board’s committees but by “industry machinery” – joint committees of employer and union representatives. There was no enthusiasm for the process among employers or trade union leaders and it had little practical effect. There were long delays and most cases ended inconclusively. I cannot recall a single meaningful remedy for any victim of employment discrimination under the 1968 Act.
Only after the Sex Discrimination Act reached the statute book in 1975 did the impetus build up for an effective Race Relations Act. The SDA had expanded the definition of discrimination to include indirect discrimination, the cumbersome conciliation process was abandoned and individuals were given the right to take their own cases to courts and tribunals. Damages could be claimed. A start was made to impose positive duties on public authorities to act against discrimination. These changes remain the basis of our current system.
While in several respects strengthened by the development of European law and by the extension of the prohibition of discrimination to gender, disability, religion and other fields, the domestic law became complex and overlapping. The creation of new boards and commissions by separate legislation led to pressure to consolidate – hence the Equality Act and the supposedly comprehensive Equality and Human Rights Commission. Sadly, as so often, consolidation has been used as an excuse to cut costs and thereby to weaken support for victims. The EHRC has been decimated and individuals are deterred by court fees and the absence of legal aid from seeking redress.
David Cameron’s aspiration to end discrimination in our country is a worthy one. But it cannot be achieved without eliminating the financial barriers which prevent the EHRC from enforcing the public equality duty, and individual victims of discrimination from asserting their legal right to equal treatment when necessary through courts and tribunals. Without the real prospect of enforcement of legal obligations, the prime minister’s rhetoric is so much hot air.
This article first appeared at the New Law Journal.