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Old November 12th, 2009 #14
Alex Linder
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[part two]

The Race Relations Act of 1976

The period between 1970, when the Conservatives won the general election on a mildly restrictionist platform, and 1974, was marked by great economic and political turmoil. In the aftermath of the Yom Kippur war the boycott by the Arab oil-producers inflicted significant damage on Western economies, in Britain it led to the three-day week and widespread industrial chaos. The Conservatives wanted to take a strong line with the militant unions and called for an election in February 1974. This resulted in a hung parliament with neither party able to claim an overall majority (Labour had gained 4 more seats than the Conservatives, but two less than the other parties combined). Heath resigned and Harold Wilson formed a Labour government.

In October that same year a second election was held, in which Labour increased its overall majority to 29. In neither was the matter of race an issue, and Labour’s manifestos contained no indication that any change was contemplated to the existing legislation. Although there was no public call for additional, migrant-friendly laws that proved to be no deterrent to progressives in pressing their case. In fact, they were to be much encouraged and emboldened further when Roy Jenkins resumed the position of Home Secretary in March 1974.

Political and other developments since 1968

Political developments

As further evidence of the importance placed upon the bipartisan consensus, in 1968 the Labour government announced the formation of a cross-party Select Committee on Race and Immigration. This committee - which later became the Home Affairs Committee still extant today under the chairmanship of scandal-prone Indo-Yemeni Keith Vaz MP - was to become the principal political instrument through which future policy on race and immigration would be formulated.

The LGA66 and the so-called Section 11 grants to local authorities where large numbers of coloured migrants had taken up residence have already been discussed. By 1968 it was already obvious that much more public money would have to be invested in such areas if racial tension was to be avoided. One drawback of the s. 11 grants was that the government had agreed under Tory pressure to limit the uses to which such grants could be put. In particular, they could not be used for capital projects such as schools, hospitals and public housing. To circumvent this restriction the Local Government (Social Needs) Act 1969 was introduced. Ostensibly, these grants were not specifically or only intended for areas where immigrants clustered, but rather for areas of general social deprivation. Although the fact that grants were to be specifically targeted at areas where increasing population and overcrowding made necessary the construction of new schools made it clear to even the casual observer what the real intention was. One of the conditions under which the grants were made available was that more than a certain proportion of the population (6%) should be recent migrants. Of the 34 towns and cities that made successful bids for grants all but three qualified on that criterion. The LGA69, just like the LGA66, was in effect simply another channel through which central government could subsidise immigrants by stealth, without aggravating local ratepayers or alerting the media.

The Rise of the National Front

By the mid-70s the NF was actively campaigning on a national level and conducting well-attended rallies and marches, all of which served to raise its profile amongst the public while arousing the ire of ‘anti-fascist’ elements. The NF was judged to be sufficiently troublesome that Lord Scarman, in his 1975 report on the Red Lion Square disturbances, was moved to call for the removal of some of the restrictions that hampered prosecutions under the RRA65 (recall that the incitement provisions of the 1965 Act had been carried over intact by the 1968 Act).

Scarman’s recommendations were enthusiastically endorsed by the Board of Deputies, amongst others. According to the Jewish Chronicle of 17.1.76:

‘Section 6 of the Race Relations Act, 1965, dealing with incitement to racial hatred, may be amended and strengthened following representations made to the Attorney-General, Mr. Sam Silkin, QC, by the Board of Deputies. ‘In the view of the board’s Jewish Defence and Group Relations Committee, the weakness of the Section is its present requirement that “intent” to stir up racial hatred must be proven for any prosecution to succeed.can be established… If the Race Relations Act is to be relevant to the current situation, it must be given the teeth which it now patently lacks.’

The Jewish Board of Deputies also sent a memorandum on the subject to the Home Secretary, Roy Jenkins, and to the House of Commons Select Committee on Race Relations, calling for deletion of the intent provision contained in Section 6 of the Race Relations Act. The memorandum stated:

“This provision has been a major stumbling-block in initiating prosecutions and has allowed some of the most vicious types of racist provocations to go unpunished.” It also noted “… the difficult economic situation facing this country and the experience gleaned from recent history that racial hatred can be inflamed in times of economic stress and political uncertainty.”

There seems little question that the rise of the NF as well as the popularity of the equally sinister ‘Powellism’ convinced campaigners of the need to redouble their efforts.

The ongoing campaign of agitation for more legislation

By 1970 a large and growing race relations lobby had arisen with two principal aims. First, to win over public opinion to the view that racism was an endemic problem in British society, and second, to press for increasingly severe action to root it out.

With respect to the former, the Political and Economic Planning think-tank was again to play a major role. Beginning in 1972, PEP undertook a number of major studies into ‘racial disadvantage’ in fields such as employment, education and housing. Shocking reports were published with statistics showing that, depending on the area and the type of work, up to 50% of coloured applicants experienced discrimination. In 1975 the Commons Select Committee published a report which was extremely critical of the record of successive governments in eliminating discrimination and disadvantage. The common refrain was that the legislation was too restrictive and the enforcement mechanisms too feeble. There was particular criticism of the dual administrative structure for combating discrimination, in which the RRB was responsible for conciliation and enforcement, and the Community Relations Commission (CRC) for ‘public education’. The clamour grew not only for wholesale changes in the law but also for a single unified body to be responsible for overseeing its implementation as well as the vital task of the production and dissemination of propaganda. Not least amongst the clamourers were the members of the RRB and CRC themselves, who argued consistently that owing to the legal institutional constraints under whiich they laboured their joint efforts simply lacked any credibility with the ethnic minorities, who were thus said to be reluctant to come forward with complaints.

This struck quite close to home with Jenkins and his allies within the government since, for the first time in a national election, Labour had overtly courted the ethnic vote in the 1974 election. There was evidence that this strategy had proved successful in several marginal seats, especially in Inner London and the West Midlands.

The perception had grown that the existing legislation just hadn’t done the job it was designed to do. Discrimination had proved difficult to prosecute, let alone eradicate. The courts were accused of being obstructive and of delivering too many ‘conservative’ court judgments when required to rule on points of law. One case which caused particular dismay amongst anti-discrimination campaigners was the 1974 House of Lords ruling in the case of Preston Dockers’ Club. The Lords had overturned a lower court decision that in declining to admit a black man as a member the Club’s board had acted unlawfully and in contravention of the RRA68. By ruling that the club’s membership committee were not legally required to open the club to the ‘public’ but were permitted to admit new members based upon their own club rules, the decision put all 4,000 workingmen’s clubs beyond the scope of the RRA68. Not just that, great fears also arose that thousands of other private clubs, such as golf clubs, angling clubs and so on would be immune from prosecution if their member were to vote to implement a ‘colour bar’ on new memberships.

Another perceived shortcoming of the legislation was that it failed to provide any sanctions against indirect discrimination, that is, against a racial group as opposed to an individual. A ban on beards (or turbans) in the workplace, for example, could not be prosecuted under the Act even though such a ban would obviously have a disproportionate impact on, say, Sikhs as a group. Indirect discrimination would feature large in the campaign to initiate more extensive legislation.

The creation of the 1976 Bill

In September 1975 Jenkins presented his White Paper on Racial Discrimination to his cabinet colleagues a few days prior to its public announcement. The White Paper presaged the Bill and the Act that was to become law a little over a year later. At over 30 pages and 130 clauses it presents a fascinating summary of liberal attitudes towards race at the time. Before reviewing some of its more remarkable features, it may be interesting to consider how it came about.

In his 2003 Runnymede Trust lecture, Anthony Lester explains it thus [emphasis added]:

… Roy Jenkins, as shadow Home Secretary, invited me to become his Special Adviser, in 1974, developing policy on what became the Sex Discrimination Act 1975 and the Race Relations Act 1976. ... Much to the annoyance of Home Office officials, who had been responsible for preparing a narrowly restrictive policy for the Heath administration, on my second day at the Home Office, I circulated [the] Runnymede paper as my preferred approach. It was a good example of Runnymede’s indirect influence … , because much that was contained in that paper eventually found its way into the statute book.

In late 1974 Jenkins and Lester travelled together to the US taking along with them their draft bill for the Sex Discrimination Act which would become law in 1975. At this period there were quite intense cross-Atlantic interactions between the respective branches of the civil rights industry and, in many respects, American practice was deemed by British elites as markedly superior being wrought, as it were, in a racial furnace of a far higher temperature. Jenkins and Lester soon learned that, according the American experts, their draft was deficient in two key areas. First, there were no sanctions against indirect discrimination, and second, there were no plan for the introduction of US-style affirmative action scheme to remedy the lingering effects of past discrimination. These ‘American lessons’ were not lost on Jenkins (or Lester) and on their return the Sexual Discrimination proposals were amended accordingly, as were the still-developing concepts for new racial discrimination legislation which would be the subject of the forthcoming White paper.

As it happened, the indirect discrimination provisions in the Sexual Discrimination Bill were hotly disputed, and the Bill barely survived the committee stage, passing by a single vote. A recurrent issue was the complete lack of any evidence of practices that constituted indirect discrimination against women. Fortunately for the proponents on the race side of the house that was not the case. Evidence such as that provided by the various PEP studies as well as by the race lobby itself would serve to amply demonstrate that racial discrimination was still flourishing in Britain.

The White Paper on Racial Discrimination took on a high moral tone, as described by Lester:

… In the White Paper ‘Racial Discrimination’, we explained the need for a determined effort by Government, by industry and unions, and by ordinary men and women, to ensure fair and equal treatment for all our people, regardless of their race, colour, or national origins. Racial discrimination, and the remediable disadvantages experienced by sections of the community because of their colour or ethnic origins, are not only morally unacceptable but also a form of economic and social waste which we as a society cannot afford.

We referred to emerging evidence suggesting that ‘the problems with which we have to deal if we are to see genuine equality of opportunity for the coloured youngsters born and educated in this country may be larger in scale and more complex than had been initially supposed’. We argued that it was the government’s duty to prevent morally unacceptable and socially divisive inequalities from hardening into entrenched patterns. The White Paper recognised that a ‘fuller strategy to deal with racial disadvantage’ would have to be deployed, and that there was a need for urgent action, including using government contracts as a tool for securing compliance with the law.

The connection between racial discrimination and racial disadvantage was to be relentlessly promoted as the new Bill completed its passage through Parliament. Any hint or suggestion that coloured migrants might share any responsibility for the disadvantages they suffered was to be immediately attacked and condemned as ‘racialist’ or ‘Powellite’. Their general inferiority on every measure of socio-economic status was held to have a single cause – the relentless racism that they encountered from the native population. No dissenting opinion was to be tolerated. This totalitarian approach was to ensure that the forthcoming parliamentary debate would be a most memorable one.

In the preamble to the White Paper, Jenkins paid tribute to the efforts of those who made the major contributions to its formulation; the RRB and CRC, the Runnymede Trust, PEP as well as various ‘organisations within the minority communities’ were singled out for special praise. And in commending the cross-party Commons Select Committee on Race and Immigration he emphasised the continuing importance and relevance of the bipartisan consensus.

… [S]ince 1968 the Select Committee has conducted a number of enquiries and produced a series of detailed reports and recommendations on some of the major aspects of race relations and immigration (education, employment, housing, police/immigrant relations, the problems of coloured school-leavers and the control of Commonwealth immigration). In particular, the most recent report of the Select Committee on the organisation of race relations administration, published on 21 July 1975, has made a number of important and far-reaching recommendations about the role of central and local government and related matters.

Somewhat illogically, he then went on to stress the need for additional legislation to tackle disadvantage while at the same time conceding that it was impossible to quantify the practical impact of the existing legislation. This seems to be saying that, while the earlier medicine had not effected a cure, the best and only way forward was be to administer a yet stronger dose of the same, perhaps ineffective, curative.

The White Paper recites the now familiar litany of flaws and shortcomings that had to be addressed: the lack of sanctions against indirect discrimination; the inadequacy of the powers of the RRB to pro-actively investigate cases of suspected discrimination even where no actual complaints have been received; the depressingly small number of successful prosecutions and the low levels of financial compensation awarded to victims; the limited injunctive powers of the courts which were said to be ‘artificially’ restricted; the inability of the legislation to deal with what were viewed as endemic patterns of discrimination in employment and housing; and, last but least, the lack of confidence of the coloured population in the structures that had been created to eradicate discrimination.

A new theme that was aired involved the government’s intention to ‘harmonise powers and procedures for dealing with sex and race discrimination so as to secure genuine equality of opportunity in both fields.” What this meant in practice was the inclusion in the forthcoming race legislation of the two ‘Americanised’ elements that Jenkins and Lester had brought back from their trip: sanctions against indirect discrimination, and measures to promote a ‘soft’ form of affirmative action. These were intended to act as further declamatory rhetoric aimed at shifting the balance in British law away from individual rights and towards group-rights. Lester has some interesting commentary on the subject of indirect discrimination, which he links to the concept of ‘disparate impact’ as first defined in the landmark 1971 case of Griggs v Duke Power Co.. He states that, Griggs was the “… original intellectual inspiration for Britain’s provisions against indirect discrimination, which were seen by many as a major departure in British legal ideology.” Although indirect discrimination has never proved to be a significant factor in Britain (representing less than 5% of all cases brought by the CRE, according to Christian Joppke) the concept has been ‘… highly influential in creating a language of group rights [and for] the results-oriented logic of achieving statistical parity between racial groups.’

Affirmative action was to make its entrance into British law in the form of ‘positive action’. Almost nobody outside the race industry and its beneficiaries is aware that affirmative action in this guise has formed part of British law for over thirty years, even though it is hidden in plain sight in Part VI of the RRA76, which deals with ‘general exceptions’. In particular, Sections 35, 37 and 38 spell out in some detail the circumstances under which the ‘Special needs of racial groups in regard to education, training or welfare’ may be accommodated without contravening the Act. It is under these exceptions that job advertisements like this one barring white people from consideration are permissible. Christian Joppke claims that since no hard quotas are involved ‘positive action’ initiatives like the foregoing cannot be considered to be affirmative action in its true sense. But that seems to me to be incorrect, since even in the US, officially-sanctioned affirmative action need not involve specific quotas, in fact in some fields such as university admissions, quotas per se have been ruled unlawful.

A further interesting innovation announced in the White Paper was the introduction of the concept of the ‘genuine occupational requirement’. The example given was that of a Chinese restaurant with a ‘distinctively Chinese décor’ where it would permissible to insist that anyone employed there as a waiter would have to be Chinese also, since that constitutes a ‘genuine occupational requirement’. It is thanks to this exception, as enshrined in s5 of the RRA76, that tens of thousands of Bangladeshi immigrants have been admitted over the years , each one fulfilling a ‘genuine occupational requirement as a cook, waiter or washer-up in the thousands of ‘Indian’ curry emporia that are now such a prominent feature of the British townscape. The concept also applies in a number of other fields besides catering in which it is permissible to employ someone of a specific racial group for ‘reasons of authenticity’. One such field is acting, so it is puzzling that the Royal Shakespeare Company did not feel able to take advantage of this concession when casting the lead role in a recent production of Henry V.


Adrian Lester* as Henry V
*No relation to the other A. Lester (at least I don’t think so)

It’s actually quite instructive to browse the RSC website and enjoy the mental contortions that theatrical luvvies now have to go through in insisting that having a black man play Othello as a ‘genuine occupational requirement’, while at the same hailing the casting of a negro as a medieval English king:

… I think the days are passed of a white actor blacking up. Since 1985, the RSC has only cast non-white actors in the title role - I don’t in fact think the RSC would do Othello without a black actor playing Othello. … [Gregory Doran, director of the current production]

...

But Lester’s casting by the National Theatre makes a statement that both national subsidised companies have now moved into the age of colour-blind casting, and that the strength of the performance is more important than the factual accuracy of the colour of the character’s skin.

Lester won rave reviews as Hamlet in a production at the Young Vic, directed by Peter Brook last year. He also appeared alongside John Travolta and Emma Thompson in the film Primary Colors, and co-starred with Branagh in the 2000 film production of Love’s Labour’s Lost.

The West End producer Thelma Holt, who has worked with both the National and the RSC, said yesterday: “This is a major breakthrough. Adrian has energy and he is charismatic.

“It is perfect casting. I am glad that the colour of his skin is not an issue. Let’s hope that Nick Hytner continues with colour-blind casting and takes it to the extremes. Maybe one day we will have a white Othello again.”

Both the National Theatre and the RSC are opposed to casting a white actor as Othello. [The Independent, 16 August 2002]

Well, after that little diversion back to the White Paper. In many respects, and not least with respect to the level of controversy that it stimulated, the most contentious proposal in the White Paper had to do with the criminal act of incitement. Until now it had been necessary to show that racially-offensive speech, behaviour or writing was intended to stir up racial hatred. What the government now proposed, egged on by the Board of Deputies et al, was to lower the threshold of proof so it would only be necessary to show that the act of incitement was likely to stir up hatred. This is how this remarkable departure from Common Law precedent was justified by Jenkins:

126. Relatively few prosecutions have been brought under Section 6 of the 1965 Act and none has been brought under Section 5 of the Theatres Act. However, during the past decade, probably largely as a result of Section 6, there has been a decided change in the style of racialist propaganda. It tends to be less blatantly bigoted, to disclaim any intention of stirring up racial hatred, and to purport to make a contribution to public education and debate. Whilst this shift away from crudely racialist propaganda and abuse is welcome, it is not an unmixed benefit. The more apparently rational and moderate is the message, the greater is its probable impact on public opinion. But it is not justifiable in a democratic society to interfere with freedom of expression except where it is necessary to do so for the prevention of disorder or for the protection of other basic freedoms. The present law penalises crude verbal attacks if and only if it is established that they have been made with the deliberate intention of causing groups to be hated because of their racial origins. In the Governments view this is too narrow an approach. It accepts the observation made by Sir Leslie Scarman in his report on the Red Lion Square disorders that Section 6 is too restrictively defined to be an effective sanction. It therefore proposes to ensure that it will no longer be necessary to prove a subjective intention to stir up racial hatred.

This novel feature, with its apparent contradiction to established Common Law, would encounter particularly heavy flak in the Lords, and from an unexpected source, as we shall see later.

The 1976 Bill in Parliament

The new race relations Bill was presented to parliament in March 1976 and the Second Reading debate commenced on March 4th. At this point Margaret Thatcher had been the leader of the Conservatives for a year and she had initially signalled an intention to set aside the bipartisan consensus by instructing the parliamentary party to actively oppose the bill. Given the fragile nature of the Labour majority there is a good chance that had she done so the bill could have been defeated or, at least, significantly changed. As it happened she was prevented from taking this stance by a threatened revolt of leading Tory ‘wets’ who were concerned that open opposition would bring opprobrium on the party which was trying to ‘update’ its image. Given the insecure nature of her own status as party leader – Thatcher was never popular with nor fully supported by the old-school Tory grandees – she had little real choice but to acquiesce to this pressure. The official party line was to support the bill on principle, but to oppose on specific points of implementation; the official directive to Conservative MPs was to abstain in all divisions.

In a number of respects the passage of the bill through Parliament was to prove divisive and tumultuous. Getting the bill enacted was to require far more effort on the part of its sponsors than had the bills of 1965 and 1968. This was the case not just in the Commons but in the Lords as well. The following account tries to provide an overview of the key issues which came into contention, and the atmosphere in which the various debates took place. Reading through the accounts in Hansard, one can’t help feeling regret that television came too late to Parliament for us to experience the oratory of the likes of Enoch Powell, Patrick Mayhew and Quintin Hogg in their prime. And Roy Jenkins, too.

Compared to what was to come later the Second Reading debate was relatively brief at a little over six hours and comparatively tranquil in tone. The debate was opened by Roy Jenkins in his capacity as Home Secretary and ministerial sponsor. Jenkins gave a general overview of the main objectives of the legislation, highlighting that the focus was as much on the elimination of racial disadvantage as on racial discrimination, although pains were taken to elaborate on the intimate connection between the two. For the rest, it was mostly a rehash of the White Paper, as outlined above. He also noted that “…Wherever possible, the Bill has been drafted on the lines of the Sex Discrimination Act . … [And] that the Government’s total aim was to harmonise the powers and procedures for dealing with sex and race discrimination,” a statement that was to come back to haunt the government later in the debates. William Whitelaw responded as official spokesman for the opposition, and confirmed the intention to contest points of detail while abstaining from voting on the bill itself.

Whitelaw’s opening remarks were practically the only contribution made by the opposition front bench during the Second Reading debate. Ronald Bell’s later remark that the government front bench appeared to have a ‘Trappist vow of silence’ in effect when faced by a particularly awkward amendment could just as well have applied to his own leadership throughout the entire proceeding.

As the debate progressed we start to hear more and more from dissident Tories and others. Prominent amongst the latter is Enoch Powell, by now no longer a member of the opposition front bench or even a member of the Conservative party, but instead an Ulster Unionist MP. Powell reiterated his now familiar objection to the very concept of race relations legislation:

… It is, by its nature, counter-productive. It is counter-productive because the creation of new rights creates new grievances. Make no mistake, this new legislation creates new rights. Those who came into this country as immigrants instantly inherited all the traditional and fought-for rights of the inhabitants of this country. Those immigrants came into the possession of those rights; but the purpose of this legislation is to create new rights, new remedies, which the inhabitants of this country have never enjoyed and never sought, for the sake of this new and growing element which is amongst us. But the creation of new rights in response to such a situation simply creates the ground for new “resentment”, to use William Deedes’ word, and new grievances.

Let there be no misunderstanding. The search for new grievance is eternal. There is no limit to the grievances which can be found by those who are determined to find them.


During the remainder of the debate other issues were aired which should have stimulated much discussion in committee but which didn’t owing to the craven hands-off policy of the official opposition. So it was up to backbenchers like Roland Bell, Nick Budgen and John Stokes to ensure that they were brought to the fore, which they duly did. In the end the bill passed its second reading by a vote of 134 to 10, the Noes being: Ronald Bell, Nick Budgen, James Molyneaux, Enoch Powell, Nicholas Ridley, William Ross, Ivor Stanbrook, John Stokes, Roger Stott and Nicholas Winterton.

The Report stage debate was held on July 8th and has entered the annals as one of the longest continuous sessions in British parliamentary history. Starting in the late afternoon it would be late the following afternoon before the House adjourned, the Hansard record of the proceeding running to an astonishing 277 pages. It wasn’t the case that the chamber was filled with hundreds of members all anxious to have a say. Most the time there were barely a hundred in attendance and few of those present actually spoke. Amongst the few who did speak were our intrepid band of dissenters who, the record shows, totally dominated the proceedings. If only their party colleagues, and especially the front bench, had been made of sterner stuff the story might have ended very differently.

As a normal rule the Report stage of a bill passes fairly uneventfully since much of the more contentious content will have been fully aired and resolved in committee. As we’ve seen that didn’t happen. What did happen instead is that all those awkward amendments that the mainstream Tories didn’t want to table in committee got tabled instead by the dissidents during the Report stage, which is actually the last phase of the process (in the Commons) that amendments to a bill can made. In all twenty such amendments were tabled, plus a couple by the government, and it was this volume of new business that turned the Report stage from a normally routine event into a twenty-four hour marathon. I’ll list here several of the key amendments, with a short commentary on each.

 Two government amendments which came under sustained attack by the dissidents were eventually withdrawn. One dealt with a plan to require employers to implement ethnic monitoring schemes, and the other called for the CRE to have a role in economic planning.

 The dissidents tabled an amendment to limit the CRE’s powers of investigation, to remove the proposed prohibitions on private clubs using race as a membership criterion, and to restrict the definition of ‘qualifying bodies’; all were defeated.

 Also referring to qualifying bodies (in the sense of professional and trade organisations which oversee professional qualifications and certifications) an amendment was tabled to remove the requirement that, in considering whether a candidate was of good character, the body must take into account whether he had been ever found guilty of (or even charged with) any form of discrimination in the past. This one caused such difficulty for the Under Secretary of State charged with conducting the process that Jenkins himself was called to intervene (at 1 am!). Jenkins’ argument was that since the clause had been carried over from the Sex Discrimination Act in toto it was following an established precedent. However, once it was pointed out that the concept was in conflict with the ‘spent’ convictions provision of his Rehabilitation of Offenders Act which stipulated that offenders did not have to disclose earlier convictions older than a certain date when making employment or other applications, Jenkins had to agree to reconsider. In fact, this same provision came under heavy fire in the Lords and was eventually withdrawn. A significant moral victory for the dissidents. As an aside, Jenkins had to be called back to the chamber again around 4 am to rally the government troops who by this time were feeling distinctly shellshocked.

Several other dissident amendments of fundamental importance and great legal significance were also defeated with Tory connivance (aka abstention). One such was the shocking reversal of the burden of proof, a tenet of English common law since Saxon times. The legislation would require that the respondent in an access discrimination case show that the alleged discrimination was ‘justifiable’, reversing the legal credo that it is the responsibility of the prosecution to show that an offence had occurred. The justification offered by the government was that such cases are civil in nature, but this ignores the obvious point that the sanctions against access discrimination were extremely harsh and their effects in terms of personal record are, in contrast to criminal convictions that become ‘spent’ after a set period, perpetual in nature. Another issue which arose was the provision of services and facilities by a person from their home, again deemed to be subject to the Act.

Of all the objections to the Bill perhaps the one which generated the most heat was probably the change in the provisions against incitement to racial hatred. As foreshadowed in the White Paper the new Bill lowered the threshold for criminal conviction from one where the prosecution needed to show an intention to stir up racial hatred, to one where it was merely necessary to show that the words or behaviour were likely to do so. The argument reached its highpoint in the House of Lords, where the Bill entered its Second Reading after passing its Third Reading in the Commons. The opposition spokesman in the Lords was Quintin Hogg, now Lord Hailsham, and who it may be recalled was shadow Home Secretary in 1968 when that Act was going through Parliament. Hogg took a rather passive role in that debate, as did his counterpart when the present Bill was in the Commons, but on this occasion his speech was masterful. It’s worth presenting an extended extract. Hogg had moved an amendment to retain the ‘intention’ requirement in the incitement clause …

… Lord Hailsham of Saint Marylebone

… Wittingly or unwittingly the Government have by this clause subverted the whole doctrine of English law. I am not concerned now with purely summary offences. This is not purely a summary offence; it gives rise on indictment to conviction, to imprisonment for a term not exceeding two years—I am reading from subsection (5)—or to an unlimited fine, or both. In other words, it is comparable to some of the old serious offences of dishonesty, and therefore is comparable to any offence under English law.

To my mind, it is a fundamental principle of English law and one which is absolutely vital for the preservation of individual liberty, that a crime should consist of two separate elements: first, there is the prohibited act, quaintly and rather illiterately referred to by lawyers as the actus reas, and there should also be a state of mind, which is also criminal, quaintly and not so illiterately referred to by lawyers as the mens rea. In the great majority of cases, though not always, the guilty state of mind is an intention. Quite deliberately the Government have created in this new clause an indictable offence in which the mental element is removed altogether, because a person who distributes written matter which is “threatening, abusive or insulting…in a case where having regard to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain by the matter or words in question”, is guilty of that offence. There is no reference to intention. The purpose of the Amendment standing in my name is to substitute for the likelihood of it happening the intention that it should happen; in other words, that the offence should remain but should be made conformable to the ordinary principles of English criminal law—and I see no reason why that should not he applied.

[He then cited several instances in which third parties, such as newspaper editors reporting on inciteful speech, or public figures talking about it, might become liable for prosecution simply for reporting it, on the grounds that racial hatred is likely to be stirred up]



The history of sedition as a crime has much the same sort of nuances as that which the noble Lord has now introduced into this Bill. One remembers the series of prosecutions by Mr. Scott at the end of the 18th century before he became Lord Eldon and Lord Chancellor, how it ruined the standing and reputation of the then Administration and brought great discredit upon the whole crime of sedition for this very reason. The series of libel prosecutions for criminal libel has similar history. Indeed, Lord Erskine made his reputation as an advocate at the English Bar by ridiculing and destroying some of those prosecutions. Returning, not to 1984 but to 1784 in this clause and to Mr. Scott, the then Attorney-General, I do not think that that is sensible at all.

I am not in the least mollified in my condemnation of this extraordinary piece of legislation by the fact that no prosecution can be brought except by or with the consent of the Attorney-General under subsection (5). I do not like these special clauses in any criminal provisions; nor, do believe, have successive Attorney-Generals and Directors of Public Prosecutions relished the task thrust upon them in some Acts of Parliament. But a thing so politically sensitive as the decision to prosecute or not prosecute, let us say, a Privy Councillor who makes a controversial speech about race, is something with which no Attorney-General ought to be faced. Either the law should be applicable at the instance of the person who believes himself to be insulted or it should not be applicable at all. No, let us stick to the well-proven principles of English law and let us not lose our heads because of the National Front or Mr. Powell. I beg to move.


Hailsham’s amendment was passed and returned, together with a number of other amendments dealing with issues raised by the dissidents, back to the Commons. On final reading of the Bill however they were not adopted, the government’s majority and the acquiescence of the official opposition being enough to ensure that the Race Relations Act 1976 received its Royal Assent just a few weeks later.

Summary of the Race Relations Act 1976

Writing in 1998, Anthony Lester claimed that “The Race Relations Act of 1976 established a body of law, which was broad in scope and was, and still is, unique in Europe.” Since 2000 various EU directives have altered that picture somewhat, but in their attention to both access discrimination and expressive racism recent EU measures have followed the British model.

Some of the major new provisions introduced by the RRA76 included:

 The definition of unlawful discrimination was extended to include indirect discrimination (disparate impact) which affects racial groups, in addition to the existing prohibitions on direct discrimination against individuals.

 It would no longer be necessary to prove intent to secure a conviction for the criminal offence of incitement to racial hatred.

 With some minor exceptions private clubs were no longer permitted to discriminate on racial grounds. This overturned the earlier Lords ruling in the Preston Dockers’ Club case that club members were not a ‘section of the public’ as defined in the RRA68.

 Exceptions were allowed for ‘genuine occupational qualifications’ in which membership in a particular racial group was necessary in order to provide other persons of that racial group with personal services promoting their welfare, or for ‘reasons of authenticity’.

 The CRE was formed by amalgamating the RRB and CRC. The new body received a new mandate and extended powers, including the authority to conduct investigations into the activities of public and private organisations even where no evidence of wrongdoing existed.

 It would no longer be permissible to discriminate on the grounds of national origin, thereby nullifying a House of Lords ruling in the 1972 case of Ealing London Borough Council v. Race Relations Board which permitted the council to give priority in social housing to people who were British subjects under the BNA48 (thereby excluding Indians and Pakistanis, amongst others).

 The Act allowed victims of discrimination to bypass the conciliation machinery and take their case directly to a tribunal or to the county court. Tribunal and courts could now impose damages for ‘injured feelings’ as well as direct material loss. The CRE was empowered to provide legal and financial assistance in such cases.

 Instructing or inducing others to discriminate was now to be a punishable offence.

 Provided protection against victimisation of persons who brought claims under the Act.

 Local authorities were required to ‘make arrangements’ to promote racial harmony, equal opportunity and eliminate unlawful racial discrimination

Both the RRA65 and the RRA68 were repealed by the new Act which is still actively in force today. The RRA76 with its 80 sections and five accompanying schedules is about twice the size of the legislation it replaced.

Before moving on to the next general theme, which is the development of the race relations legislation during the Thatcher years, a few words on the current litigation involving the BNP.

BNP vs EHRC

Had the BNP elected to continue to contest the litigation its main defence would have amounted to a claim for exemption under s26 of the RRA76. This reads as follows:

26.--(1) An association to which section 25 applies is within this subsection if the main object of the association is to enable from s. 25 the benefits of membership (whatever they may be) to be for certain enjoyed by persons of a particular racial group defined otherwise associations. than by reference to colour; and in determining whether that is the main object of an association regard shall be had to the essential character of the association and to all relevant circumstances including, in particular, the extent to which the affairs of the association are so conducted that the persons primarily enjoying the benefits of membership are of the racial group in question.
(2) In the case of an association within subsection (1), nothing in section 25 shall render unlawful any act not involving discrimination on the ground of colour.


Since the BNP Constitution defines its membership criteria in terms of ethnic origin and not colour it would be seem to have a valid claim for exemption. The EHRC’s counter-claim was that s. 26 was not intended to apply to political parties, and offered as justification a recent House of Lords ruling in the case of Labour Party v Ahsan. This ruling upheld an appeal by the CRE on behalf of a local councillor of Pakistani origin who had been de-selected by the Labour Party national executive. Mr. Ahsan, with the assistance of the CRE, sued the Labour Party, but under s. 12 of the Act which applies to discrimination in employment, not under s. 26 which applies to membership associations. The EHRC’s case rests on the claim that, in ruling on this s.12 case, the Law Lords also by extension ruled on s. 26. I’m not a lawyer, but this seems to me to be an unwarranted assumption too far and that the BNP would have had a better than even chance of prevailing had it chosen to continue the case. The EHRC’s case is further weakened by the original White Paper which spells out clearly that the exceptions for ‘membership associations’ that later became s. 26 specifically include political organisations, even ethnically-exclusive ones:

73. ... In addition, there will be an exception to enable bona fide social, welfare, political and sporting organisations whose main object is to confer benefits on a particular ethnic or national group to continue to do so.

Of course, it’s all rather moot anyway since the forthcoming Equality Act is designed to specifically close this loophole, an action which in itself highlights that the exemption exists in the current legislations despite the EHRC’s attempts to wish it away. Paragraph 1 of Schedule 16 deals with the exemptions allowed for ‘single characteristic member associations’ who share a specific ‘protected characteristic’ (eg sex, religion or race); sub-section 16.1(5) reads “This paragraph does not apply to an association that is a registered political party.” What that in effect means is that the BNP’s membership criteria would be illegal under the new Act whereas the Black Lawyers Association would not. That does of course leave the door open for a White Lawyer’s Association, which may in time become one of the unintended consequences of the Act.

http://majorityrights.com/index.php/...ritain_part_2/

Last edited by Alex Linder; November 12th, 2009 at 12:29 PM.