Notes of Cases
| Date | 01 May 1984 |
| Published date | 01 May 1984 |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01656.x |
NOTES
OF
CASES
UNNATURAL
JUSTICE
FOR
DISCRIMINATORS
IT
is a truism that effectiveness
of
legal rights depends ultimately on
enforcement machinery and judicial approach; certainly when one
is dealing with anti-discrimination legislation, these are the crucial
elements. It takes more than neutrality to help the disadvantaged as
the history
of
Title
VII’
of
the Civil Rights Act in the United States
demonstrates. There it was the federal judiciary who converted a
weak measure into an effective instrument for combating discrimi-
nation. We would argue that in this country where the Race
Relations Act conferred on the Commission for Racial Equality
more definitive and potentially effective powers, these are being
emasculated by a judiciary which, being apparently uncommitted to
the objectives
of
the law, have emphasised the narrow letter
of
the
statute and upheld the rights of discriminators in preference to those
of
the potential victims.
..
Three years ago Lustgarten wrote:
“Certain doctrines of substantive law and still more the prevail-
ing ethos among ’udges and other le a1 actors are virtually
eradicate discrimination.
To
put it bluntly, there is a real
ossibility that anti-discrimination efforts will fall a casualty to
English legal conservatism.”*
These words were prophetic; the case law has now strengthened the
elaborate machinery
of
the Act
so
that it is in danger of grinding to
a halt in regard to the Commission’s power to launch formal
investigations. The power to carry out this type of investigation was
identified in two Government White Papers3 which preceded the Sex
Discrimination Act
1975
and the Race Relations Act
1976
as strategic
in identifying and eliminating discriminatory practices: “The Com-
mission’s
main
task
will be
.
.
.
to identify and deal with discrimi-
natory practices by industries, firms or
institution^"^
and this could
be “on its own initiative” and “whether or not there had been
individual complaints about the organisation in~estigated.”~ Exten-
sive investigatory powers were conferred on the Commission for this
purpose for it was recognised that the individual would usually lack
the resources to finance and compile proof, and that what was
needed was an independent body acting in the public interest who
could undertake a thorough appraisal of practices, policies and
procedures which, although apparently neutral, might have a
discriminatorv imuact.6 American research had revealed that well-
guaranteed to un
d
ermine the remedia
P
measures required
to
’
U.S.C. 42.
*
Legal
Conrrol
of
Discrimination
(MacMillan 1980), p.187.
‘
Cmnd. 6234, para. 51 (emphasis added).
“Equality
of
Woman,” Cmnd. 5724, and “Racial Discrimination,” Cmnd. 6234.
Ibid.
para. 110.
Ibid.
para.
8.
334
May
19841
NOTES
OF
CASES
335
established business practices often excluded minorities, albeit
unintentionally, and it was therefore essential that recruitment,
selection and promotion policies be scrutinised as a whole within the
context of the entire organisational structure. Building upon this
knowledge and on the difficulties which had beset the old Race
Relations Board, the new Race Relations Act set out to establish a
different framework. Now two recent cases threaten this entire
strategy. We are now in a situation where, through a literal inter-
pretation of the statute and in the name of natural justice, the courts
have imposed on the Commission for Racial Equality a complicated
and lengthy procedure, which has already inhibited them from
pursuing further formal investigations.
In
R.
v.
C.R.E.,
ex
parte
London
Borough
of
Hillingdon’
the
C.R.E. had drawn up terms of reference proposing to investigate
how the Borough exercised its duty under the Housing (Homeless
Persons) Act
1977
to house unintentionally homeless persons. Hil-
lingdon probably has more than its fair share of these, lying, as it
were, in the flight path of immigrant families, and one Hillingdon
councillor had dramatically drawn the Government’s attention to
this problem by depositing a Kenyan Asian family on the doorstep
of the Foreign Office. The Press publicised the case and compared
this family’s treatment with the different treatment accorded a white
Rhodesian family who had been immediately housed by the Bor-
ough. As a result the C.R.E. decided to investigate the treatment of
ethnic minority families arriving homeless from abroad. The Borough
successfully applied for judicial review of the C.R.E.’s terms
of
reference, asking the court to quash them on the grounds that they
were drawn too widely. Although this was the key issue in the case
the procedure to be followed by the C.R.E. when commencing a
formal investigation was also considered by the Court of Appeal8
and their view was adopted by the House of Lords.’
Sections
48-52
of the Race Relations Act lay down the procedures
and powers
of
the Commission when conducting formal investiga-
tions. Section
48
states that such investigation may be conducted for
any purpose connected with
the
duties of the Commission to elim-
inate discrimination and promote racial harmony, while section
49,
which has been at the centre
of
the conflict, lays down the procedure
to be followed when the Commission decides to investigate. Section
49(1)
reads: “The Commission shall not embark on a formal inves-
tigation unless the requirements of this section have been complied
with.” Subsections
(2)
and
(3)
oblige the Commission to draw up
terms
of
reference and inform the person being investigated of the
holding
of
the investigation, arid subsection
(4)
directs them to
“(a)
inform that person
of
their belief and of their proposal to
investigate the act in question; and
(b)
offer him an opportunity
’
1982 3
W.L.R.
159.
*
1981
3
W.L.R.
520,524-525, 532
and
540.
I1
1982
3
W.L.R.
at
p.162.
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