A recent study of the effectiveness of anti-discrimination legislation in the field of employment has proved a puzzle.Conceived by the Policy Studies Institute in 1987, it was surprisingly funded by the Home Office: ‘surprisingly’ because Home Office support would lead one to conclude that the Government was seriously considering the need to amend the Race Relations Act 1976 – which would have seemed an unlikely intention in the Thatcher years. Alternatively, the Home Office might have hoped the report would conclude that legislation in this area was a mistake, a view expressed on television by Sir John Wheeler, Conservative chairman of the Select Committee on Home Affairs – if so, those hopes were disappointed.
Why were the terms of reference so narrow in any case? Discussion about the effectiveness of anti-discrimination legislation, as the report itself states, is part of a wider discussion about policy towards racial minorities. Indeed, it is difficult to discuss this legislation usefully without taking account of the position occupied by racial minorities in society in general, of the policy of the government towards them and of other instruments of policy available to government in seeking to carry out that policy. It would be particularly useful to have answers to the last two questions from the present government, since it has shown singularly little interest in the development of race relations policy other than as a response to riots. Indeed, one asks oneself whether it has a policy other than one of benign or, as I would describe it, malign neglect. The general aims of race relations policy were discussed during the passage of the 1968 Race Relations Act, but the issue has been studiously avoided by successive governments since then. The tensions engendered within a multi-racial and multi-cultural society will not disappear by being ignored either in this country with its deep recession leading to large-scale unemployment, or within the European Community where the fear is no longer of a victorious Communism moving relentlessly westward but of massive immigration from the southern Mediterranean, Central and Eastern Europe and a disintegrating USSR. If the free movement of labour within the EC is to have any meaning, the Community will have to develop a common immigration policy, and it is also desirable that common policies towards discrimination on grounds of race, colour or ethnic origin should be established. Oddly enough this is one area in which, despite its deficiencies, the law in this country is well in advance of that of our Continental partners. Race relations is not a subject that any of us can afford to neglect in the Nineties.
Nevertheless, despite the limitations imposed by its terms of reference, Racial Justice is a constructive document. Its recommendations for changes in the law, which coincide with those of the Commission for Racial Equality, demand government attention and implementation. It is difficult to understand why anti-discrimination legislation on the British mainland is so much weaker and less comprehensive than it is in Northern Ireland, unless the terms of the Ulster law are simply a response to the greater level of violence in that province – an idea that would be greeted with shocked denials from ministers but which gains a certain plausibility given their instant response to the riots in Toxteth, Brixton and Bristol, for example.
The authors express some reservations about the organisation of the CRE, and in particular, about the efficacy of the successive reorganisations that took place in 1977 on the introduction of the new Act, in 1982 and again in 1988, but do not give enough weight to the pioneering nature of the task entrusted to the Race Relations Board and then to the CRE. Race relations law is a transplant from the US, where it is quite common to use the law as an instrument of social policy: here it is unusual. The law in this country conforms broadly speaking to the mores and the conventional morality of the population: in the US it was used initially to impose a political system on the founding states and then as a potent instrument in the Americanisation of immigrants. Race relations legislation runs against the grain of many English assumptions about the nature and purpose of the law and it is not surprising that securing compliance with such legislation has involved some trial and error and a fairly lengthy period of learning. The record of the CRE in dealing with individual complaints shows the possible success of this process, while its problems in tackling wider and more general inquiries reflect, first, inexperience, secondly, deficiencies in the law itself and thirdly, lack of resources. The report does not raise the question which was hotly debated during the preparation of the 1976 Act: whether it is wise to combine in one organisation the two functions of law enforcement and public education which in the US are handled separately. On the face of it, they are distinct and better kept apart.
The authors rightly describe the objectives of British legislation as being threefold: to provide justice for aggrieved individuals, to articulate and reiterate standards, and to bring about change in the position of racial minorities. They find that the tension between the first and the third objectives ‘has given rise to significant problems’. It may have but I cannot see why it should, nor that there is any inherent contradiction between the aim of bringing justice to individuals and that of a more general improvement in the position of racial minorities. There may of course be occasions when an individual, for his own reasons, may prefer to settle a case which the CRE thinks could be used to bring about change on a wider scale, but in such circumstances the individual’s wishes must take precedence. There is also the question of how resources are allocated between various objectives, but it is hardly unusual to have to establish priorities in this area.
What has become plain from the CRE’s experience is that an individual making a complaint which comes before an industrial tribunal has a far greater chance of success if he is represented by the CRE. There is a case for making legal aid available in such cases so that more people can have adequate representation. In the US this task is largely undertaken by powerful civil rights organisations, The failure to develop effective ethnic organisations in this country has been one of the disappointments of the last twenty years. There is a gap here that urgently needs to be filled, not only to provide complainants with the support they require but also to act as a lobby or series of lobbies which articulate the needs and aspirations of minorities.
What is now needed is to put Racial Justice in the context of the PEP reports of 1966 and 1972 and the PSI report of 1982/83. Those studies examined not only the extent of racial discrimination and the degree to which it had diminished (all too little), but also levels of employment, housing patterns, the development of the different ethnic groups and the degree to which those born here were doing better than their parents. They allowed us to assess the extent to which the lives of minority groups were converging with those of the majority. They provided a means of measuring the success or otherwise of race relations policies and a guide to the direction in which the policies should point.
Now that the 1991 Census has reintroduced the ethnic question, much of the material for a further survey will be available and the Home Office should provide the necessary finance for it to be analysed and written up on the lines of its distinguished predeces sors. Inquiries at the Home Office indicate that it has no such plans. This is deplorable and irresponsible It is not too late for Mr Baker to think again.