Race relations acts
The United Kingdom has had four acts to combat racial discrimination, the Race Relations Acts of 1965, 1968, 1976, and the Race Relations Amendment Act of 2000. The last, despite its title, is regarded as the most far-reaching and innovative since the 1968 Act. They show a steady progress away from the sense that either nothing need be done, or that such an act should rely on conciliation mechanisms. All four acts were passed by Labour governments, and they form, with the companion acts aimed at abolishing sex discrimination, the 1970 Equal Pay Act and the 1975 Sex Discrimination Act, the UK’s main anti-discrimination efforts. The first Act was far too weak; during its progress through the House of Commons criminal sanctions were dropped for all but the offence of incitement to racial hatred. It was passed by a government which was anxious not to involve the courts, and which hoped that the criminal law would not have to be used at all. Indeed, the government assured the House of Commons when presenting the original bill that they expected no litigation to arise from it. Likewise the Act’s institutional support, the Race Relations Board (RRB), and also the Community Relations Commission (CRC) created by the second Act of 1968, were inadequate; although the RRB was entitled to carry out investigations of racial discrimination, it had no subpoena powers, and could investigate only where an individual had made a complaint to it. Most important of all, perhaps, individuals could not bring cases directly against discriminators, but had to complain instead to the RRB. The logic behind these two acts was that they were not really intended to attack individual actions of discrimination on behalf of individuals whose rights had been abridged, but were seen as attacking the practice of discrimination generally as a matter of public interest. Lacking any other constitutional protection for their rights, members of racial minorities were therefore prevented, perhaps even discouraged, from pursuing their private interests in the matter.
The 1968 Act did at least widen the area of coverage, by making discrimination illegal in both housing and employment, as the previous Act had only gone as far as to make racially-restrictive covenants in property sales unenforceable. Housing discrimination is the single most sociologically-significant form of racial discrimination because of its tendency to create racial ghettos. However, the 1968 Act was still very weak in itself, and the courts proceeded to interpret it very narrowly indeed. In particular they insisted on distinguishing between nationality and race, and allowing discrimination, however overt, on the former criterion. In another set of cases the Lords of Appeal refused to uphold claims of discrimination against clubs affiliated to political parties which refused to allow membership to those of minority races, on the grounds that the Act only forbade discrimination on those offering services to members of the public. The general sense in the courts was effectively that there was a right to discriminate in the common law, and the acts were only meant to limit this basic right. Unless the courts could be brought to see it the other way round, and to see the underlying right as that of not being discriminated against, judicial interpretation was likely to be fatal to any legislative approach.
So inadequate were the acts that the 1974–79 Labour government determined to repeal them and effectively start again. The RRB and the CRC were replaced with the Commission for Racial Equality (CRE), and the 1976 Act significantly widened the entire approach. It banned discrimination on the grounds of nationality (to overcome the court rulings) and on grounds of race, colour and ethnic and national origin. Like the Sex Discrimination Act of the previous year, the new Act added a category of ‘indirect’ discrimination, because it had been very hard to prove that the real reason for discrimination in the past had been racial when the discriminator could claim so easily he was acting for some other reason. In an exact parallel to the Sex Discrimination Act, a complainant under the new Act had to prove three things to establish indirect discrimination. In the context of an actual education case, for example, a private school refused to take a Sikh unless he promised not to wear his turban. The boy’s father had to prove firstly that there was a test applied both to Sikhs and others, in this instance of coming to school in uniform; secondly that the test was one which a substantially smaller proportion of Sikhs could comply with than non-Sikhs (in this case, obviously, the proportion able to comply was zero); and thirdly that the actual complainant, his son, could not pass the test. This latter aspect of the law is to ensure that personal cases under the Act actually are cases of personal suffering, not a public interest case, because public interest cases are meant to be dealt with by the CRE. The case is interesting also because the court had to exercise considerable ingenuity in deeming a Sikh to be a member of an ethnic or racial group, as the plaintiff was using the Act to avoid religious discrimination, which is not illegal in the mainland UK, though it is in Northern Ireland. The Act covers most institutions: the professions and trade unions, police, prisons, the military, all local government institutions, education both public and private, employment, and, to overcome the previous court decisions, clubs with more than 25 members as well as all provision of services to the public. Now, for the first time, individuals could bring their cases to county courts and industrial tribunals, as well as relying on the CRE, which in addition has a duty to help them prepare their cases. Though not perfect, the race relations legislation is probably more successful than the comparable sex discrimination statutes. The most recent Act, although called an Amendment Act, brings in several new elements. For the first time it actually imposes a positive duty on the institutions it covers to work towards good race relations, rather than just forbidding bad practices. It also covers a huge range of institutions, including all educational and local authority bodies, and requires them both to develop policies for good race relations and to incorporate them into the mainstream of the everyday activities of the institution.
Despite its rather modest title, the Race Relations Amendment Act (RRAA), which came into force in 2001, is in fact a major piece of new legislation in the United Kingdom, and certainly the most important such legislation since 1976 when the initial series of legislation was finalized (see race relations acts). The new Act prohibits discrimination in all functions of public authorities. It shares with the Human Rights Act (1998) the characteristic of giving a very broad definition to ‘public authority’, thus notably extending the coverage of the 1976 Act: anybody ‘whose work involves functions of a public nature must not discriminate on racial grounds while carrying out those functions’. This extension to private institutions which carry out public functions means that, for example, the whole of the education system now shares the obligations of more obviously governmental bodies, such as the civil service or police force, not to discriminate racially.
Were this all that the Act did it would make it no more than an important tidying up of the existing legislation. What marks it out as innovative in the area of anti-discrimination and human rights is that it also imposes a ‘positive duty’ on all public authorities, the duty actively to promote good race relations. Despite the fact that the Commission on Racial Equality (CRE), which polices the RRAA, has produced both a statutory code of practice, and four non-statutory guides, it is as yet very unclear what this positive duty will involve for many types of organization, or how a public authority could be shown to be in breach of the duty. The common rhetoric of experts in the area is that authorities must ‘mainstream’ race relations in all they do; essentially they must continually remind themselves to check on both their motivations and the consequences of their actions whenever they make or apply policy. What the Act most certainly does do is to impose considerable self-monitoring duties on all authorities, so that they can demonstrate that they are taking steps to check on themselves and to remedy failure of racial equality in their daily activities. To give one example, the CRE requires of higher educational institutions that they: prepare a racial equality policy; assess how their policies affect ethnic minority students and staff; arrange to publish their policy, and the results of assessments and monitoring.
As yet there have been no major judicial interpretations of this Act, but the idea of a positive duty is so novel in British constitutional law that it is inevitable that some legal testing will be necessary before the full force of the legislation can work properly.
With the possible exception of religion, race has been the most common form of discrimination practised in modern society. It is extremely difficult to distinguish between racial and ethnic discrimination, and modern sociology essentially makes race a part of ethnicity for analytic purposes, although legal systems have often been cast in purely or predominantly racial, that is skin colour, terms. The British Race Relations Act of 1976 and the Race Relations Amendment Act of 2000 are typical of modern anti-discrimination legislation in including ethnicity as part of the definition of race. Interestingly, in mainland United Kingdom, as opposed to Northern Ireland, there is no legal prohibition of religious discrimination, and consequently there have been attempts, sometimes successful, to bring cases of discrimination based entirely on a religious belief under an ethnicity definition. (The Human Rights Act (1998) probably makes it no longer true that religious discrimination is legal, though it has yet to be tested on this matter.) The Acts make it an offence to discriminate racially in several ways, the core aspect being a ban on discrimination in providing any service to any sector of the public.
The problem with legal control on racial discrimination is that although racial tolerance is a prominent value of liberal society, most such societies also hold to a strong belief in freedom of private choice. Thus while few would attempt to defend a state agency discriminating racially, it is less frequently thought appropriate to forbid discrimination by private action, because this transgresses the principle of freedom of choice. Consequently, anti-discrimination measures are both harder to justify and technically more difficult to operate in the private sphere, notably in the housing market, where a myriad of private concerns, including strictly financial ones, have made it difficult to ensure mixing of residential areas. Because so much else, above all educational opportunity, depends on residential patterns, it has become crucial not to allow the seller of a house to refuse to sell to someone whose race or ethnic origin he dislikes. Yet restrictive covenants are a central part of the way land law has developed in most common law countries, and tampering with them is to tamper with the core value attached to the freedom to own property.
Even where a state is determined to take action against racial discrimination, there are enormous problems of ensuring compliance with anti-discrimination legislation as, for example, in the area of employment. Frequently it is possible to tackle discriminatory practices only at a macro level, by making the history of hiring in a company count as imputed evidence of discrimination, because proving actual discrimination by any particular selection committee in an individual case is likely to be impossible. Part of the problem in dealing with racial discrimination is that although it may be a theoretically distinguishable phenomenon, it is sociologically mixed. Someone coming from a deprived background in terms of the society’s traditional stratus system will probably also be deprived in other ways, and will come from an overall social class which experiences inequality of treatment. Typically, racial discrimination declines only when a proportion of unusually successful members of a group develops the class, income and educational characteristics of the more advantaged. This development makes discrimination against their members much more clearly racial, and therefore identifiable, and also shows it to be less and less justifiable in terms of what may have been mere excuses, but may also have been partially genuine reasons for their past lack of success. There is a severe limitation to the effectiveness of legislated rights protection in this area, but much of the importance of this protection comes from the symbolic value of having society commit itself to the principle of combating discrimination. Although no-one can doubt the continued presence of racial discrimination, particularly now that the concept of institutional racism has entered the vocabulary from investigations of the police service, government policy is increasingly moving towards wider attempts to deal with all forms of social exclusion. (See also Brown v. Board, inherently suspect category, National Association for the Advancement of Colored People and voting rights.)
Although it has a general application, the concept of radiating effect comes from, and is best worked out in, the German Constitution’s law of human rights. It is a partial answer to the problem of horizontal effect, the idea that human rights protected in the Constitution should apply between legal individuals, and not only between the state and the individual. But the idea has a broader application, and essentially marks out one whole way of looking at the role of a constitution. The German court first developed the concept of the radiating effect of constitutional law in a case where a plaintiff who claimed that his freedom of speech was being abridged by the purely commercial efforts of a businessman to prevent shops selling a magazine in which he was attacked for his Nazi past. As it was a case exclusively between individuals, there was no direct constitutional effect. It was argued, however, that the Constitution represented the highest legal and political values of the society, and the interpretation of all legal relationships must be affected by these values. Thus, in a case like this where there was, in any case, legal doubt as to who was in the right over a pure matter of, in this case, restraint of trade, the constitutional value of freedom of speech should prevail. Since then, both the German Constitutional Court itself, and the ordinary courts following its lead, have expanded the idea, and extended its coverage considerably, especially in cases where the basic rights like privacy and equality, and matters of discrimination in general, are involved. While a useful way of getting quite close to the idea of direct effect, it may be limited in real utility to countries which share the basic understanding of the role of a new constitution to be as a guarantor of liberal democracy, after a period of tyranny, as, of course, was the case in Germany, and perhaps in most transition democracies. In such societies, the constitution is not seen as a morally neutral set of procedural rules, attached to which is a ragbag of prohibitions on specific sorts of legislation, as is largely the common law world view.
No-one claims that the US Bill of Rights (see Bill of Rights (USA)), the English Human Rights Act (1998), or even the Canadian Charter of Rights and Freedoms, present a coherent and unified moral and political code, from which answers to most questions of the use of power can be derived. Where such a bill of rights does not plainly forbid the government to take some specific action, or directly confer a right or immunity on a citizen, it is silent, and the courts can do very little. This is why so much of the constitutional argument before, say, the US Supreme Court has the character it does, of a desperate attempt to extend the meaning of a vague phrase to cover some activity clearly never thought about by the drafters of the bill. In the USA, for example, the only way that a woman’s right to have an abortion could be dealt with by the Supreme Court was by a tortuous interpretation of phrases that had nothing to do with abortion, which had not crossed the minds of the Founding Fathers. The German Court, in contrast, was able to work from a hierarchy of rights they had constructed, and fit the abortion issue into a much wider and integrated body of constitutional thought. Unless such an approach to constitutions spreads to the common law world, neither direct effect itself, nor its weaker equivalent of radiating effect, is likely to develop.
Reasonable time for trial
The requirement that no one should have to wait an unreasonable time between being charged with an offence and the beginning of his trial, though it features in most detailed human rights codes, is partially tempered by the alternative that bail should be allowed if the trial is not to start soon after arrest. Where pre-trial detention is not used, it is not clear whether the reasonable time requirement is simply one of the many demands of the due process right, or a substantively valuable right in itself. Obviously the state could deliberately be very slow to bring to trial someone they had little chance of convicting as a punishment in itself, given the inevitable psychological suffering that would be experienced. However, even relatively liberal states have a serious problem with lengthy delays before trial because of the almost universal overcrowding of the criminal justice system in most advanced countries. There is, in the common law, a rather vague sense that a long-delayed trial is an abuse of justice in itself because of the difficulty of ensuring fairness when evidence, and particular witnesses’ recall, will have become unreliable (see also fair trial). In practice, trials are delayed as much by defence counsel taking time to prepare cases as they are by the prosecution. It may be that the worst aspect of overcrowding is that it encourages the prosecution to offer plea-bargains to avoid lengthy trials, with the subsequent temptation for the defendant to plead guilty to a lesser charge, of which he is nevertheless innocent, rather than wait for months and risk conviction on a more serious charge.
As law works by the analysis of formally- and publicly-stated reasons and arguments, public law, the branch of law most relevant to discussions of human rights, is crucially dependent on access to the reasoning of decision-makers acting for the state. Only if a court can see, in the decision maker’s own words, what factors he has taken into account, and why he thinks he has the legal authority to do something, can they effectively check on the arbitrary or discriminatory use of power which is at the heart of most human rights problems. Consequently a very strong obligation to provide written reasons for any challenged administrative decision has been written into the public law of most states, in both the common law and code law world. Naturally the system has flaws: a really biased administrator can simply lie about his reasons, even if he still has difficulty in finding any plausible reason for his decision. Only with the greatest reluctance will a British court allow, for example, the Home Secretary to exercise a power he clearly has, for example to refuse a citizenship request, without giving reasons for such a decision. An interesting contrast exists here between a jury trial and a trial before judges sitting alone, as juries do not give their reasons, and often acquit the clearly guilty, or convict the probably innocent, for reasons of their own, while judges, equally likely to be biased, have to give reasons, and have much less freedom to follow their bias. This was demonstrated notoriously in Northern Ireland when jury trial was abandoned for some terrorist offences. Judges sitting alone frequently convicted suspected terrorists, as a jury would have done, only to have their decisions overturned on appeal because they were unable to give convincing reasoned opinions to compensate for the paucity of evidence. In addition to these arguments, reasoned decisions are the essence of the doctrine of natural justice in English law or the US idea of due process because, without knowing the case against one, it is impossible adequately to answer it. In the United Kingdom, for example, there was for a long time great unease about the mechanism for deciding how long those sentenced to mandatory life imprisonment should actually serve, because the decision was made by civil servants, or the Home Secretary himself, who did not disclose any of their reasons. In part because of this flaw the courts, now supported by the European Court of Human Rights, and under the impetus of the Human Rights Act (1998), have finally forced the government to accept that no such executive role should be involved.
Refugees (see asylum)