‘Race’, Difference and the Inclusive Society

Anti-Discrimination Law, Affirmative Action and the Pursuit of ‘Equal

Opportunities’ I: the UK

Peter Ratcliffe

Lecture outline

• Social agency and legislation• Background to the introduction to anti-

discrimination legislation in the UK• Race Relations Acts: 1965, 1968 and 1976• Equal Opportunities Policies and their

detractors• Retrenchment during the Thatcher-Major

years• Generic equality policies and the emergence

of the Equality and Human Rights Commission (EHRC)

Background to lecture

• Last time - looked at the role of social agency in combating racism and racial discrimination

• Saw that this can achieve positive changes ‘on the ground’ and can also pressure governments to legislate against such exclusionary forces

States follow very different paths

• US and India followed ‘affirmative action’ route • Britain took a rather more conservative approach. A particular focus of the lecture will be the extent to

which legislation actually produces real changes.

Background to legislation

• Attempts to get legislation on the books as early as 1951

• Reg (later - Lord) Sorensen sponsored a Private Members Bill in that year

• It failed, as did a further ten attempts between 1952 and 1964 by Fenner (later - Lord) Brockway

• THEN…...following serious unrest in Notting Hill and Nottingham in 1958 the Labour Party in opposition tried unsuccessfully to persuade the Tories to act.

Race Relations Act 1965

• First so-called Race Relations Act was passed in 1965

• Only covered ‘places of public resort’: in other words, alleged discrimination in, for example, cinemas, clubs, restaurants and cafes

Why was the legislation so weak?

• Political realities – Harold Wilson’s position in Parliament and his own party.

• External political context – immigration issue• Smethwick by-election in 1964 (cf. last term)

Conciliation and ‘policing’ bodies 1. National Committee for Commonwealth Immigrants (NCCI). • Concerned with broader policy matters and coordination of

local activities• Local voluntary liaison bodies would be supported partially

by central government

2. Race Relations Board.

• The legislative arm, responsible for dealing with complaints of discrimination. Impact?

• Few complaints, and even fewer cases won • Even then, sanctions were minimal • Most cases brought to the Board fell beyond remit of Act

Race Relations Act 1968

• In the US and Canada - studies ‘revealed’ that the law needed to tackle the most serious problems, e.g. in employment and housing

• In the UK - National study by Political and Economic Planning (PEP) showed that discrimination varied ‘from the massive to the substantial’ (Anil Sivanandan)

• General political pressure, including from CARD (cf. last time), eventually paid dividends

The Race Relations Act 1968:• Covered direct discrimination ‘on grounds of colour,

race or national origin’ (though not religion) in key substantive areas such as education, housing and employment.

Conciliation and ‘policing’ bodies

1. NCCI was replaced by the Community Relations Commission (CRC).

• Tasked with the duty to undertake research and

to promote ‘racial harmony’• More direct duty to encourage the formation of

local Community Relations Councils (CRCs) 2. The Race Relations Board was reconstituted,

but given wider duties. Had a direct duty to investigate complaints of racial discrimination.

RRA1968: impact assessment1. Although cases of overt discrimination were fewer, the

incidence of covert acts was greater2. Investigations often took so long that complainants to

the RRB were put under a great deal of pressure for protracted periods

3. Integral to the latter process was the fact that the Board had too few powers. [Didn’t even have the power to subpoena documents and witnesses.]

4. Even if a case was won, sanctions were minimal 5. The general approach was low-key and conciliatory (as

is suggested by the mission/duty imposed on the CRC). 6. A system that relies on individual-based complaints is far

too narrow. [General processes tend to underlie, and underpin, individual behaviour.] Finally………

7. The definition of discrimination was too narrow.

RRA1968: concluding thoughts

• Few cases were proven and offenders knew it. • Given endemic racism, many companies judged that

the ‘negative publicity’ surrounding a particular case would not hurt them.

• CRCs tended to be ‘talking shops’ - distant from local problems. Anil Sivanandan - CRCs fulfilled a ‘buffer function’; stemming revolt rather than addressing problems - ‘incorporating’ young Black professionals (cf. the US).

• So, the legislation wasn’t working. [More research - PEP undertook its second national study in 1974.]

• Again under political pressure, the Labour government gave its support to the Race Relations Act 1976 (the current Act).

RRA1976: progress?

CRC & RRB fused as Commission for Racial Equality

Legislation differed in significant respects from 1968 Act

• The definition of ‘discrimination’ was widened to incorporate cases of ‘indirect discrimination’.

• There were also greater legal powers (i) to subpoena documents and witnesses, and crucially (ii) to initiate investigations.

• Complaints-based procedure was dispensed with (and with it the focus on individuals and individual complaints). Organisations could be, and were, investigated. [Formal investigations e.g. Massey Ferguson, Hackney Council, St. George’s Hospital Medical School. Occasionally, whole professions were investigated, e.g. accountancy.]

RRA1976: impact assessment• CRE was hopelessly stretched. Never had the

funding to deal with the massive task it faced. • Act was weakened by specific exclusions

Public authorities were generally included in its provisions, but not Police and Immigration Service (state racism?). Rectified 24 years later!

• The legislation still lacked effective sanctions. This stemmed from the fact that those who broke the law were deemed simply to have committed a civil misdemeanor (not a criminal act). Finally…..

• Legislative focus was on non-discrimination rather than anti-discrimination.

1976 Act: concluding thoughts

• Local CRCs did not compensate for these weaknesses. Also conflicts of interest because local authorities provided much of their funding.

• CRE and others argued that only by collecting systematic data at a national level would it be possible to ‘measure’ disadvantage and to assess the effectiveness, or otherwise, of the legislation.

• So, ‘ethnic group’ appeared in 1991 Census (Thatcher blocked the question in 1981: cf. last term)

• The Third National Study from PEP (Black and White Britain 1984) was used to pressure government to legislate further. Tories simply turned a blind eye.

• Attention turned to ways of introducing Equal

Opportunities Policies (EOPs).

Equal Opportunities Policies in the 1980s

What are EOPs? Jewson and Mason (in Equal Opportunities Policies in the 1980s):

• Liberal. Focus is on fair practices (e.g. in the labour market - human resource procedures should be even-handed.)

• Radical. Here, focus is on producing an equitable distribution of resources. [So, again in the labour market, the aim would be to achieve an equitable distribution of jobs by grade, etc.]

The focus of these is very different: the first puts the emphasis on means, the second on ends

EOPs: the role of the CRE• The CRE pushed the Liberal approach. It was forced to, as…… • In the UK: positive action is legal, positive discrimination is not

(cf. the US – next week).

Quotas are illegal (in the UK), targets are legal. But……

• how should targets be set, and • how can institutions be encouraged to introduce EOPs and set

targets?

CRE introduced a series of Codes of Practice (esp. in employment and housing). Targets were seen as the appropriate yardstick against which the success of an organisation’s policies could be judged.

But, could not compel a firm to follow the Codes of Practice

CRE Codes of Practice

The central plank of these codes - formal EOPs employing ‘ethnic monitoring’

• Key requirement - monitoring should be ‘active’. [Not simply about collecting data: about acting on the results]

• Best EOPs incorporate both employment and service delivery issues

More progress made in the public sector than in the private sector (as in US – next week)

Retrenchment: the Thatcher yearsSpecial statutory duty imposed on local authorities by

section 71 of the RRA1976. but the response varied enormously:

• Best formed ‘Race’ and ‘Gender’/‘Womens’ units: others did little or nothing

• CRE complained of lack of general political will

Thatcher government launched sustained attacks on ‘socialism’ (cf. current Coalition policies).

• Introduced tight fiscal constraints• Effectively privatised public services [e.g. Compulsory

Competitive Tendering (CCT)]

The Major years• View was that no change in the law needed. ‘Voluntary

action is nearly always preferable to law enforcement.’• Wherever possible, the CRE should adopt a

‘conciliatory approach’ when promoting equal opportunities.

But the CRE:• Couldn’t enforce ‘contract compliance’• Couldn’t bring ‘class actions’ (as in the US – next

week)• Had to rely on negotiating voluntary agreements, e.g.

with local authorities.• Was compelled by lack of finance to use the formal

investigation as a weapon of last resort.

From EOPs to ‘Managing Diversity’

Further threat to EOPs - ‘the postmodern turn’ • ‘Ethnic managerialism’ blurred distinctions in

needs and aspirations arising from the sheer diversity evident within minority communities.

• So, in rejecting ‘ethnic essentialisms’, policymakers began to favour policies termed ‘Managing Diversity’. But,

‘Managing diversity’, if taken to its logical

conclusion, means that monitoring, active or otherwise, is literally impossible.

Race Relations (Amendment) Act 2000

• Police were finally brought within the provisions of the legislation

• A new Statutory Duty in respect of racial equality imposed on all public authorities.

• Furthermore, the definition of a public authority was widened. [Any private company undertaking work for a public body (say a local authority), by virtue of this relationship alone, becomes a public authority itself.

Postscript: emergence of the EHRCRight up to its eventual demise in 2007, the CRE was

massively overstretched, and public authorities resistant to change remained so…………….

Switch in policy towards a generic equalities agenda led to:

• The demise of the CRE (October 2007) • The closure also of the EOC and DRC • The replacement of the three former Commissions by the

Equality and Human Rights Commission (EHRC) - opened 1 November 2007

Trevor Phillips (former head of the CRE) appointed as Chair. [Implications of shift in policy direction to be discussed in week 13………]