With prejudice
THE LAW R. A. CLINE
The Street Report on anti-discrimination legis- lation has rightly received respectful applause from that segment of public opinion which is professionally or politically interested in the matter. Race prejudice is not a subject which everyone is prepared to square up to. Like cancer, it is something which one prefers to think of as happening to other people. The small and gallant band of people whose pressures produced the present Race Relations Act had a hard sell. As a nation we are naturally dis- posed to divide into parishes, clubs and coteries and from within these to cocoon ourselves in comforting but wholly insupportable beliefs about the awfulness of the others. For that is what prejudice is all about. The merit of the pressure groups is that they have forced us to consider whether race prejudice is too gritty a substance to be removed from the body politic merely by the organic processes of its blood- stream, by education, goodwill, tolerance and voluntary work. Legislation cannot change the hearts and minds of men but it can go a long way to changing the environment, and hearts and minds are notoriously adjustable.
The need for legislation has been established and partly satisfied. But now the Street Report is asking for more. It calls for more legislative direction, more penalties and more teeth in the present anti-discrimination system. No one can reasonably quarrel with the proposal for better and stronger conciliation procedures. Indeed, there is a case for introducing this 'ante- chamber' procedure into other spheres of litiga- tion where people, hell-bent on tearing each other to pieces in open court, could be subjected to a kind of guided cooling-off treatment in the hope of avoiding the ultimate weapon.
But conciliation has to be backed by some- thing stiffer. In its quest for effective sanc- tions the Street Committee has used the law of contempt as its long-stop. The proposal is that if the Race Relations Board makes an order against a discriminator and the latter refuses to comply, the board would be em- powered to start contempt proceedings in the ordinary courts, and then the judges would be asked to act in the same way as they do now when punishing for disobeying an injunction.
The extension of the punitive jurisdiction of the civil courts should prompt the strongest misgivings. As matters are at present, the judge in chambers exercises this jurisdiction sparingly; in divorce cases there has been a growing tendency to ask the court to intervene and imprison intransigent husbands for disobeying orders not to molest their wives. We should keep to the minimum the categories of non-criminal
offenders who may find themselves behind bars, such as wards of court, their abductors, molest- ing husbands and the like. The space is needed for the real crooks. Yet here is a proposal that will add to their number the race discriminator. If it is not to be a criminal offence to be racially discriminate (and this the committee rejected), it should not become so in this crab-like way.
But the bones that really stick in the throat are the extension of the legislation to jobs and housing. Of course these matter to those in search of them, as the indigenous population of this country are presently reminding the Government. But the relationship between em- ployer and employee is fundamentally a per- sonal one. In giant corporations, the employer for this purpose is the local manager. He is the current target for abuse, wherever and when- ever strikes occur. He has to appease above and below. How can he fit into the proposed framework which ordains as a matter of law that racial characteristics shall not be taken into account in choosing?
The Fabian pamphlet on the subject, Policies for Racial Equality, Research Series 262, recog- nises by implication the danger of the principle involved: 'Although it would mean exempting a large area from the scope of the law, it would be prudent to exclude the establishment employing fewer than ten people.' Prudent indeed. But why? 'In these cases the relevant relationships are too personal to be satisfactorily dealt with by local intervention.' Agreed. But in the case of ict as in the case of a small work- shop, there is always a personal relationship between someone giving orders and someone taking them. It may not be the chairman, but his underling way down in the hierarchy has the same personnel problem as if he were the chair- man. Indeed it is arguable that the small man can cope with racial problems better than the giants because of the scale of his activities.
The Street Report has not dodged the problem. In paragraph 176(2) we find 'Anxiety is expressed by some at subjecting those violat- ing employment discrimination rules to such sanctions. The case is put of the employer who complains that he will be faced with a strike if
'I've got it! You fight the next by-election." he obeys the order to employ coloured persons.' And the answer: The strikers would thereby be committing a wrong which would expose them to an action at common law . . .' But is that the answer? Not unless the Trade Disputes Act 1965 is repealed (which reversed Rookes v. Barnard). If men go on strike because a coloured man is being employed, they do so in furtherance of a trade dispute and their behaviour is 'not actionable on the ground only that it consists in [the strikers] threatening that they will induce [their employer] to break a contract of employment to which [the em- ployer] is a party.' They are protected if they strike to get rid of any coloured man or any Mr Rookes of the future. So what does the manager do then?
Finally, on the crucial question of housing, we must understand the full complication of the proposed law. A lessor's right to choose his tenant is to be restricted (except, illogically, where there is a sharing of living space and thus an 'undesirable' propinquity). 'Racial dis- crimination results from the abuse of contract and property rights,' says the Fabian pamphlet, and that is incontrovertible: so do many other evils, social, economic and financial, which are no less disreputable. 'At present, the discrimina- tor exercises them at the expense of the human rights of the victim of his discrimination.' Not surely a human right to my house, but to housing. The community has an obligation to house all its members of every race; if it is now being suggested that every lessor has an obliga- tion to house any of those members, with or without his consent, then it is time we redefined our position as to private rights so that every owner of property (fat-cigar types, ailing widows and even trade unions) may know what small residual powers he has left. Precious little, except to wait for his compensation.
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