30
ISSUES: Racial & Ethnic Discrimination
Chapter 2: Tackling racism
Race relations after 50 years
By Sir Geoffrey Bindman QC
T
his year marks the 50th
anniversary of the statute which
originated equality legislation
in Britain: the Race Relations Act 1965.
In the last 50 years, anti-discrimination
law has proliferated. The Equality
Act 2010 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 nine statutes
and over 100 statutory instruments.
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 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 on 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 was receptive to 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 approach 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 anti-discrimination strategies in that
country. After the anti-slavery states of
the north won the civil war in the 1860s,
legislation was introduced to criminalise
not only slavery itself but a wider range
of 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 regarded as
justified.
So the lawagainst discriminationbecame
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.
Roy Jenkins accepted this model for
Britain, but with narrow scope and
weak sanctions. The Act empowered a
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 compromise with
fierce political opposition denied its
application to employment and housing,
where discrimination was much more
widespread and damaging. Enforcement
was weak to the point of non-existent.
If conciliation failed, the Race Relations
Board’s only power was to refer the
matter to the Attorney General, who
could 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.
The one saving grace of the 1965 Act
was a requirement on the board to
monitor the effect of the new law and
report its findings to the Home Secretary.
To assist in this task, two reports were
commissioned.
One was a practical survey of the
experience
of
minorities
seeking
employment,
housing
and
other
services carried out by PEP (Political and
Economic Planning). 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 scope of the
law was duly extended. The conciliation
system was retained, but if conciliation
failed the board was empowered to
seek redress in the County Court. This
could include awards of damages as
well as injunctions to restrain future
discrimination.
Over the next eight years the board
brought a number of County Court
cases, mostly successful but with trivial
awards of damages 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 such feeble wording as
“we deny having discriminated and we
promise not to do so in the future”.
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. I cannot recall a
single meaningful remedy for any victim
of employment discrimination under the
1968 Act.
Only after the Sex Discrimination Act
(SDA) reached the statute book in 1975
did the impetus arise for an effective
Race Relations Act. The SDA 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.
A start was made to impose positive
duties on public authorities to act against
discrimination. These early efforts to
