The Thatcher Years
Following the previous “Winter of Discontent’ when incessant strikes and general economic gloom made everyone’s life a misery it was no surprise that the tired and discredited Labour regime were turfed out and replaced by Margaret Thatcher’s Conservatives in the 1979 general election. Race and immigration did feature to an extent in the election, or at least in the run-up to it when Thatcher made her notorious ‘swamping’ comments on Granada TV’s World in Action programme. Few now doubt that this was a cynical ploy to siphon off anti-immigration supporters who might otherwise have gone to the National Front, and an early effort at ‘dog whistle’ politics aimed at ‘Middle England’. The election manifesto did contain some fairly robust language about immigration controls (we’ll be looking closely at immigration policy promises and actual outcomes in another, forthcoming thread) but nothing at all about race relations.
In retrospect and in comparison to the frenetic activity during the ten years to 1986 there is relatively little to report in the field of new race relations legislation during the Thatcher and Major eras. Randall Hansen’s comment that “Having a Labour government in place appears to be a necessary condition for the passage of race legislation” appears largely, but not entirely, correct. It’s certainly the case that Thatcher made no attempt to roll back the existing legislation, instead it was extended in some surprising new directions . Per Hansen, no government has ever considered repeal of the Acts and he notes that the RRA76 is one of the very few policies that had earlier bipartisan support to survive Thatcherism.
So if the field of race relations legislation as such was during the period comparatively quiescent and uneventful compared to what had gone before, the same cannot be said of the matter of race relations itself. Violent race riots, which broke out in late 1979 in Southall and April 1980 in Bristol were replicated in several other towns and cities over the next several years. These what the Scarman report primly termed ‘disorders’ formed a principal motivation for the most important piece of race-related legislation enacted during the Thatcher era, the …
The Public Order Act of 1986
The period between 1979 and 1985 was a particularly active time for social disruptions of various types, involving not just ethnic minorities but also striking miners and anarchic ‘travellers’. The 1980 Bristol riots were followed by even more serious disturbances in 1981 in ethnic areas such as Brixton, Toxteth in Liverpool, Moss Side in Manchester, Chapeltown in Leeds and Handsworth in Birmingham. In 1985 there again occurred serious racially-oriented disturbances this time in Peckham and Hackney, and again in Handsworth and Brixton. Racial insurrection on this scale was unprecedented in Britain and the authorities were shocked at the ferocity of the violence, as were the public who saw terrible images of ‘American style’ mayhem and destruction repeated nightly on the TV news. The report of the official inquiry by Lord Scarman into the 1981 riots predictably placed the blame on ‘racial disadvantage and discrimination’, and insensitive policing, and called for ‘urgent action’ (i.e. financial subsidies) to solve the problems of economic decline and unemployment in inner-city areas with high immigrant populations. Home Secretary William Whitelaw claimed that the disturbances in Brixton and Toxteth were not race riots as such, but rather an extreme form of opportunistic criminality fuelled by social disadvantage. No commentary was offered on the very localised nature of the riots, nor on the ethnic origins of the perpetrators.
In presenting the new Public Order Bill to Parliament in January 1986 Home Secretary Douglas Hurd stated that he wanted to make it clear that “… the Bill was not cobbled together in hasty reaction to last autumn’s riots”, but instead that the 50 year-old Act was overdue for an overhaul anyway. There seems little question, however, that the existing Public Order Act as well as the older common law offences of unlawful assembly, affray and violent disorder were totally inadequate to deal with outbreaks of third-world savagery on the scale experienced in Brixton and Toxteth. The POA had been rejigged in 1968 and 1976 to serve in the interest of fighting discrimination, but the tinkerers had obviously lost sight of the original intended function of the Act, which was to deal with serious breaches of the peace and not just injured feelings. ‘Rivers of Blood’ had fallen on deaf ears. The new Bill was to define a new offence of riot which now carried a jail sentence of up to ten years, as well as strengthened provisions against affray, violent disorder and a new offence of harassment. A new section was added to deal with football hooliganism, which had taken a very ominous turn with the Heysel disaster in 1985.
However, for our present purposes it is Part III of the Bill, that dealing with ‘Racial Hatred’ that is of most relevance. During the drafting of the Bill it became clear that many of the souped-up ‘law and order’ measures being proposed would run into resistance from not just Labour, but also from the nascent human rights industry, on the grounds that civil liberties were being degraded. Everyone knew that the principal target of the Bill was the increasing lawlessness and violent behaviour of the coloured population, even if they were not prepared to admit so publically. As a quid pro quo to mollify the opposition, the government elected to enhance and extend the scope of the sanctions against racial incitement. The decision was made to remove the incitement provisions from the Race Relations Act and concentrate them in the new Public Order Act. The Bill called for the repeal of s.70 of the RRA76 and for its replacement by the new Part III of the Public Order Act. The changes proposed were in fact far wider-ranging than Home Secretary Hurd’s rather casual summary to the House sought to imply:
… I will not dwell on part III, which deals with racial hatred and provides additional protection against incitement to racial hatred. I hope that the provisions will be acceptable to the House.
It might be useful to first review the provisions against incitement as implemented in the RRA76 before considering the changes in detail. Section 70 defined the offence (in abbreviated form) as follows:
• The publication or distribution of written matter, or the use in any public place or at any public meeting of words, which 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.
• A person guilty of an offence under this section shall be liable on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding £400, or both ; or, on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both;
• No prosecution for such an offence shall be instituted in England and Wales except by or with the consent of the Attorney General.
So that was the starting point - writings or public statements likely to stir up racial hated were prohibited.
The Bill in Parliament
While the proceedings in the Commons were uneventful, being largely distinguished by the nasal brayings of oleaginous chancer, Paole Zion stalwart and shadow Home Secretary Gerald Kaufman, who together with close allies David Winnick and Alex Carlile (more on him later) spent much time bemoaning the ‘undermining of traditional civil liberties’, things got more interesting in the Lords.
The government spokesman there was the 4th Baron Glenarthur, and it was he, with some prompting from their Lordships, who would shed some much needed additional light on the rationale for the new racial hatred provisions over which the Home Secretary had passed so lightly. The new Act was to include 12 discrete sections dealing with racial hatred (the RRA76 had just one), organised as follows:
• s. 17: Meaning of “racial hatred”
– Unchanged, the meaning of the term “hatred” is still left obscure. However see also Mandla v Dowell-Lee, below, for coomments on the definition of ‘racial group’.
• s. 18: Use of words or behaviour or display of written material
– This concerns display, as in banners, placards, posters and signage as opposed to printed matter, so in that sense this is a new addition. Also new and very radical was that the extension of the offence from public spaces to private ones as well. The only exception was when the act was commited in a private dwelling, and then only if the words, behaviour or display could not be heard or seen by anyone outside. The possibility of malicious or provocative eavesdropping or surveillance is not mentioned. It also begs the question: why not exempt a person’s office too, or in their club too, if there were no-one present who would object and there were no threat to public order?
Also new in this section is the authority given to a police officer to arrest anyone without warrant whom he reasonably suspects of having committed an offence under this section.
Another change from the RRA76 which was, on the face of it quite bizarre, was the reinstatement of the intention
to stir up racial hatred as an offence. Now, however, it was an option rather than a requirement. A person could be convicted in the event that he either had the intention
to stir up hatred, or that hatred was likely
to be stirred up. The explanation given in the Lords for this change is that much racialist material that is threatening, abusive or insulting is not likely to stir up racial hatred in a normal, sensible person (like an MP, for example) but, if it was in fact the intention of the person responsible to do just that, then he should not be permitted to get away with it just because hatred wasn’t actually stirred up.
• s. 19: Publishing or distributing written material
- Unchanged from the RRA76 version, except for the reinstatement of the ‘intention’ provision.
• s. 20: Public performance of play
- A new addition which applies to the presenters and directors of plays intended for public performance. As before, a prosecution can proceed on either the intention or the likelihood of racial hatred being stirred up.
• s. 21: Distributing, showing or playing a recording
- Similar to s. 20, except directed towards ‘recorded visual images and sounds’.
• s. 22: Broadcasting or including programme in cable programme service
- Again, similar to s. 20, but directed towards broadcast media.
• s. 23: Possession of racially inflammatory material
- A new and extremely important addition which makes it an offence to possess such material with a view to it being displayed, published, distributed, shown or broadcast. The terms display, publish and distribute are left undefined.
• s. 24: Powers of entry and search
– New. On securing a warrant from a JP or magistrate a police officer with reasonable grounds for suspecting that a person has material in his possession which contravenes s. 23 may enter and search that person’s premises, and may use reasonable force in doing so.
• s. 25: Power to order forfeiture
- New. On conviction a court may order that any material which has been shown to contravene ss. 18-23 may be forfeited.
• s. 26: Savings for reports of parliamentary or judicial proceedings
– Existing exemptions provided for in the RRA76.
• s. 27: Procedure and punishment
- The new element here is the requirement when sentencing that each charge brought under ss. 18-23 will count as a separate offence.
• s. 28: Offences by corporations
- New. ‘Piercing the corporate veil’.
In its zeal to eradicate the evil of racial hatred the Conservatives had managed to outdo even the anti-racist zealots in the Labour Party. That it should have fallen to a Conservative government, trading on its law-‘n’-order credentials, to enact repressive measures of such an Orwellian character would have been literally incredible to Winston Churchill. Not that Thatcher’s government was at all reticent about their achievement. Government spokesmen in the Lords put it this way:
Part III of the Bill substantially strengthens and improves the existing offence of incitement to racial hatred in Section 5A of the 1936 Act. (Lord Glenarthur)
Part III of the Bill contains the strongest measures against incitement to racial hatred to be proposed by any Government. (the Earl of Caithness)
Such opposition as did arise was confined to the Kaufman claque in the Commons, bleating incessantly about the new powers being given to the police to quell urban rioters while ignoring entirely the continuing onslaught on traditional English freedoms represented by Part III. The dissenters from ’76 were also absent – Powell was soon to retire from politics, Bell had already gone– and those remaining as a man voted the party line. The few dissenting voices were heard in the Lords, and then from hereditary peers who had no fear of retribution from the party whips. Little wonder that one of the first priorities for the Blair regime would be to cull their ranks and to replace them with NuLabor’s multihued placepersons, including not a few benefactors of the Mosaic faith.
The POA86 remains on the statute book today and still forms the principal means of stifling dissent and suppressing serious discussion on the issues of race and immigration. It was substantially expanded in 2006 to include the offence of incitement to religious hatred, as we will be discussing later.
There have been a number of high-profile casualties of the Act. While leader of the BNP, John Tyndall was sentenced to 12 months imprisonment in 1986 for incitement to racial hatred in connection with various articles he had written for the Spearhead magazine advocating forced repatriation of coloured people. At around the same time, John Morse editor of The British Nationalist was jailed for the same offence. Another celebrated case was the Dowager Lady Jane Birdwood, a ‘veteran anti-semite’, who was prosecuted not once but twice under the Act. In 1991 and 1994 she was convicted of publishing anti-semitic material and received a suspended sentence each time. Had she not been as close a figure to the establishment as she was the sentences would no doubt have been much harsher. A variety of other, smaller fry were snared in the net before the next big catch was landed.
In 1998 Nick Griffin was prosecuted in connection with articles that had appeared in the BNP periodical The Rune proclaiming, amongst things, that he was “…well aware that the orthodox opinion is that six million Jews were gassed and cremated and turned into lampshades. Orthodox opinion also once held that the world is flat ... I have reached the conclusion that the ‘extermination’ tale is a mixture of Allied wartime propaganda, extremely profitable lie, and latter-day witch-hysteria.” The initial complaint against Griffin had been brought by his local MP, Alex Carlile, who Griffin described as “…this bloody Jew… whose only claim is that his grandparents died in the Holocaust.” Griffin was sentenced to six months in jail, suspended for two years. In 2004 he was again prosecuted under the Act, along with Mark Collett, for remarks made at a private BNP meeting that was secretly filmed by the BBC and passed on to the police. John Tyndall was also prosecuted at around the same time for a speech he made at a BNP meeting in Burnley in which he, amongst other proscribed utterances, continually referred to former Tory Home Secretary Michael Howard by his original family name of ‘Hecht’. Griffin and Collett were eventually acquitted of all charges, albeit after a second trial., Tyndall however died before his case came to trial.
Most recently there was the case of the so-called ‘Heretical Two’, Simon Sheppard and Stephen Whittle who dramatically fled to the US in 2008 to claim political asylum. They were returned to Britain and sentenced to four and a half years and twenty-eight months, respectively. Further MR commentary on the H2 case can be found here
. The implications of the application of the POA86 to internet discourse should be quite chilling for anyone who frequents sites such as this one.
An interesting and little remarked-on aspect of the incitement cases brought since 1986 is that many of them revolve around charges of anti-semitism and/or Holocaust denial. How can that be possible in a country where Jews are not commonly held to be a racial group and, unlike other places in Europe, successive governments have consistently turned down appeals for Holocaust denial to be criminalised? The answer to the second appears to be that the POA86 renders such laws redundant, but what about the status of Jews as a racial group? How did that come about when so many Jews seem anxious to deny it? That leads us into the following …
Mandla v Dowell-Lee
The heading refers to a 1983 ruling in the House of Lords in the famous case of the ‘Sikh schoolboy’s turban’ (sounds like one Rumpole might have taken on). This concerned whether Sikhs formed a distinct racial group (in addition to being a religious one) for the purposes of the Race Relations Act. The Lords ruled that they did, with Lord Fraser summing up as follows:
… In my opinion, the word ‘ethnic’ still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin. For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more will be commonly found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which keeps it alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community”.
This ruling did not go unnoticed by the Board of Deputies nor indeed by the BNP, the latter citing the case in defining their (present) criteria for membership. The Mandla v Dowell-Lee
ruling became the standard legal criteria for deciding whether any particular population group formed a racial group for the purposes of the Act and subsequent case law confirmed that both Jews and Roma met the requirements, whereas Muslims (and Christians) do not. In giving evidence to the Commons Select Committee on Religious Offences in 2002 the Board of Deputies was at pains to emphasise both its credentials as the official representative of the entire Jewish community as well as the status of Jews as a ‘distinct racial group’.
Submission from the Board of Deputies of British Jews
1. The Board of Deputies of British Jews welcomes the opportunity to make this submission to the Select Committee on Religious Offences. The Board is the representative body and voice of the British Jewish community. It was founded in 1760.
3. The Jewish community is covered by the provisions of the Race Relations Acts. This was established by the judgment in Mandla v. Dowell Lee , 2A.C.548, HL which recognised the Jewish and Sikh communities as distinct racial groups. Subsequent cases brought before the courts have upheld the ruling. As a result, the Jewish community is afforded protection against incitement to racial hatred.
Although the POA86 remains the Jewel in the Crown as far as Thatcher-era race legislation is concerned, there were other laws introduced which also had a racial complexion.
The first of these was the Football (Offences) Act of 1991. Margaret Thatcher seemed to have it in for football fans just as Tony Blair later had it in for those who like fox-hunting. The POA86 already contained fairly harsh provisions intended to combat hooliganism generally, but that did not provide any protections against a new scourge – racialist chants and abuse during matches themselves. English football supporters have long prided themselves on identifying undesirable traits in their opponents, and composing amusing (and often insulting) ditties to highlight them. Black players were still quite rare in English football in the late 80s, and Asian players were non-existent, so it was only natural that when they did start to appear at more and more grounds fans took notice and took steps to include them and their perceived deficiencies in their taunts. This was too much for the powers that be. It was one thing to call an opposing fan a “Scouse granny-stabber” but something totally different to be call someone a “fat black git”, or to bawl out “The Spurs are their way to Auschwitz” (instead of Wembley). The 1991 Act prohibited ‘racialist chanting’ by two or more people, and an offence was deemed to have been committed even when the chanting “…was not within the sight or hearing of a person likely to be caused harassment, alarm or distress.” In later legislation the prohibition was extended to cover racial abuse by individual soloists.
Another piece of legislation enacted was the Race Relations (Remedies) Act of 1994. One of the continuing bones of contention on the part of the CRE was that the levels of compensation payable in racial discrimination cases were much too low. The problem, as perceived by the CRE and others, was that the level of the awards were limited by the amounts that the respective tribunals or the county court could levy by statute. This did not provide the deterrent effect or salutary retribution that the CRE wished for and so this Act removed those limits for racial discrimination awards only, and also allowed interest to be applied backdated to the time of the original offence.
With that we reach the end of the Thatcher era, and now pass on into the period of New Labour.