United Colours of Equality

Article excerpt

After twenty years, the Race Relations Act needs an overhaul. But the law alone can never achieve successful ethnic integration

This year marks the 20th anniversary of the Race Relations Act 1976. It is not even 50 years since the arrival of the SS Empire Windrush in 1948, which brought 492 West Indians and inaugurated the process of postwar black migration. Yet today Britain's black and Asian citizens make up almost 6 per cent of the population. How successful has the nation been at integrating these 3.2 million people?

If minorities are to integrate and find an appropriate niche in society, they must obviously be accepted as equal citizens. But there is rather more to the notion of equal citizenship than was appreciated at the time of the framing of the 1976 legislation. Hence its effectiveness has been limited to tackling two aspects only: the elimination of discrimination, and, indirectly, equality of opportunity. The first it has done well, the second inadequately. And three further dimensions of equal citizenship - equal respect, equal public recognition and equal appreciation of minority cultural identity - remain more or less untouched by the law.

The Race Relations Act 1976 has been a fairly powerful anti-discrimination tool, catching many forms of direct and indirect discrimination and dealing reasonably effectively with them. Its approach, however, clearly reflects, indeed institutionalised, the discourse on race relations that had dominated Britain from the early 1960s. It treated race as the basis of a separate form of discrimination, just as its twin Sex Discrimination Act of the same year isolated gender. So the law did not adequately catch areas in which gender and race overlapped, and excluded religious and other forms of discrimination. Were we to write a new act today, we should be thinking of a comprehensive approach based on human rights, which, while recognising the different forms that discrimination can take, would bring them all under a single rubric.

The 1976 act also contained a contradiction. While its overall thrust was individualist, its concept of "indirect" discrimination rightly introduced the concept of group rights, accepting the possibility that a specific racial group might be disproportionately and adversely affected. But rather conservatively, it used the concept only to establish whether individual members of racial groups could be shown to have suffered discrimination. We now realise that this is not enough. Some racial, ethnic, religious and other groups, as well as women, are grossly under-represented in many institutions, and cannot easily overcome the hurdles the system places in their way. If we are serious about equal opportunity, it ought to be legally possible for us to make special provisions for these groups, including some form of positive discrimination.

Contrary to general belief, judiciously deployed positive discrimination is not incompatible with, but necessary to uphold the liberal principle of equal opportunity.

The 1976 act exempts much government activity from its ambit. It does not make ethnic record-keeping and monitoring mandatory, unlike Northern Ireland's Fair Employment Act. The investigative and enforcement powers of the Commission for Racial Equality (set up under the act) are hamstrung by such complex procedures that, in Lord Denning's words, it is "caught up in a spider's web spun by parliament from which there is little hope of escaping". Nor does the act require contract compliance; that is, that all those receiving government contracts comply with the provisions of the act and monitor the ethnic minority composition of their workforce. A 1982 House of Lords decision in CRE v Prestige Group plc further restricted the investigative powers of the CRE; it is not allowed to investigate employers without a suspicion of unlawful acts, something it won't come to know without at least some prior preliminary investigation, especially when discrimination is structural and unlikely to be obvious to its victims or even its perpetrators. …