RACIAL INEQUALITY AND THE LIMITS OF LAW
| Date | 01 January 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01678.x |
| Published date | 01 January 1986 |
| Author | Laurence Lustgarten |
RACIAL INEQUALITY AND THE LIMITS
OF
LAW
I
IN
writing the conclusion to
Legal Control
of
Racial Discrimination,'
I described the mood
of
the study as one
of
qualified pessimism. I
would now, five years on, delete the adjective. It seems fairly clear
that the effect
of
the Race Relations Act
1976
(R.R.A.) in
diminishing racial inequality has been minimal, at best. This paper
is an attempt to think why that is
so,
and what more promising
measures might be taken.
Confronted with compelling evidence
of
widespread racial
discrimination and disadvantage, successive British Governments
have made use
of
legal weapons as the primary means
of
attacking
it. They have enacted legislation enabling sanctions to be invoked
through the legal process against those found to have committed
violations. The legal process can be mobilised either by an
individual asserting the right not to be subject to discriminatory
treatment, or by a specially created administrative body, either
acting on behalf
of
an aggrieved individual2 or exercising its own
powers separately defined.-' Except in the latter instance, the
legislation has proceeded by altering the rights and obligations
of
private parties and treated discrimination as essentially a matter
of
private law. Discrimination has in effect been made into a specific
statutory tort, a point recognised in the remedial provision
of
the
Act which explicitly drew the anal~gy.~
'
Measuring the impact
of
any piece
of
legislation, or any particular
social intervention, is notoriously difficult. Nonetheless, the
ineffectiveness of the R.R.A. seems beyond doubt. Whether one
looks at studies of the incidence
of
discrimination undertaken after
it came into force,s or at the rate
of
success of individual
complaints,6 or the extent and influence of the enforcement efforts
of
the responsible administrative body, the Commission for Racial
'
L. Lustgarten.
Legal Control of Racial Discrimination
(1980). p.253.
Thc Commission for Racial Equality is given powers under the Act
to
advise, assist
andlor represent individual complainants. Under the 1968 Act its predecessor. the Race
Relations Board, had the cxclusivc power to bring legal action. Most successful litigation
under the prcscnt law has involved C.R.E. support.
Under prcscnt law this is done by means of the so-called formal investigation,
R.R.A. 1976, ss.48-52, 58-60.
R.R.A. 1976, s.57(
I).
Especially that conducted by the Nottingham C.R.C. and published by them under
the title
Halfa Chance?
in 1980.
In 1982, 200 cascs heard in industrial tribunals produccd only 30 successes, a
proportion markedly lower than 25 per cent. achieved in the staple of those tribunals,
unfair dismissals. From 1977 to 1982. discrimination complaints won only 106 cases.
These data comc from the C.R.E. Consultative Document
The Race Relations Act-Time
for a Change?
(1983). p.9.
68
JAN.
19861
RACIAL INEQUALITY
AND
THE
LIMITS
OF
LAW
69
Equality (C.R.E.),' or seeks evidence
of
in
terrorem
effects
of
the
law on employers' behaviour,x the same conclusion is inescapable.
Several plausible reasons for this ineffectiveness can be suggested:
incompetence
of
the C.R.E. and of those who have represented
complainants; unfamiliarity with the legislation in the early years
of
its existence, or hostility, outright
or
tacit, to its objectives,
on
the
part
of
tribunals and judges': and substantive defects in the Act
itself, which are many and various. Numerous specific suggestions
for alteration and reform have been made."' Acting upon them
might indeed make marginal improvements in enabling individuals
to indicate their statutory rights, or enhancing the effectiveness
of
the C.R.E. But perpetual patching up will not do: the problem
goes very much deeper. Ultimately, it is embedded both in the
nature
of
discrimination and in the nature of law, or at any rate
of
a legal system underpinned and structured at every level by the
traditions and presuppositions
of
the common law.
Of
course, the climate within which the law operates has become
very much harsher in the past four or five years. There
is
now a
great over-supply of labour, hence much more competition for
jobs, which has given employers the whip hand. Nonetheless this
is
not the whole story. Promotion and training decisions continue to
be made daily and some occupations, such as accountancy and
computing, still take on many new entrants. There is less to go
round but what does remain is shared out in grossly inequitable
fashion. It is obvious that reforming legislation in this or indeed
any other area in relation to employment is not on the present
Government's agenda. We are thus at an hiatus in the terms
of
reform. We stand at a convenient as
well
as a very necessary
stopping point from which we can reflect upon the effectiveness
of
attempts in the
1960s
and
1970s
to protect weak groups in society
'
Many of the scathing criticisms
of
thc C.R.E. in thc Rcport of the Housc of
Commons
Sclcct
Committcc on Homc Affairs wcrc justified (first Report, 1981-82
Session, H.C. 46). SCC furthcr. Lustgartcn, "The CRE Under Attack" 119821 P.L. 229.
However, the courts have scvcrcly rcstrictcd thc Commission's ability to conduct formal
investigations by thcir interpretation
of
thc relcvant statutory provisions in cases such as
C.R.E.
v.
Amari Plastics
[I9821
Q.B.
265;
Hillingdon
Borough of London
v.
C.R.E.
119821 A.C. 779; and
C.R.E.
v.
Prestige Group Ltd.
119841
1
W.L.R.
335. Thcsc legal
obstaclcs wcrc wholly ignorcd in the Sclcct Committcc Report.
"
Thc Policy Studics lnstitutc Report,
W.
Danicl and E. Stillgoe,
The Impact
of
Employmenr Protection Lows
(P.S.I.,
1978) reported that most personnel managers and
others who would
bc
responsible for implementation
of
thc Act had only the vagucst
idea
of
its substancc, and had donc nothing to change their practices in light
of
it.
It
is
possible that a similar survcy conductcd in 1985, particularly with thc Code
of
Practicc
in
force since April 1984, would rcvcal considcrably greatcr awareness.
See
also,
K.
Young
and
N.
Connclly,
Policy and Practice
in
the Multi-Racial City
(P.S.I., 1981) documenting
widcsprcad ignorancc and inaction in many local authoritics, who undcr s.71 have an
ex licit statutory responsibility to eliminatc discrimination and promote equal opportunity.
'
Exprcsscd most opcnly in the Court
of
Appeal judgments
in
Ojutiku
v.
M.S.C.
[1982] I.C.R. 661. and
Mandla
v.
Dowel1 Lee
119831
Q.B.
1. The
Hillingdon
case,
supra
notc 7, manifcsts the same attitudc more subtly.
I"
Notably in the C.R.E. Consultation Document,
supra
notc
6.
and in the strcngthcned
Review
of
the Race Relations Act: Proposals for Change,
adopted by the Commission
after thc consultativc proccss and published in July 1985.
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