Louis Claiborne on

Race relations and the role of law

CHILDREN'S BOOKS

reviews by Isabel Qui gly, Kevin Crossley-Holland, Ruth Marris, Caroline Hillier, Mary James and Benny Green on a child's London, Clive Gammon on conkers

Is more law, or less law, needed in British race relations? That is the question I have been asking myself for the last year. Many to the right of me, and many to the left, for differing reasons, think this a gross irrelevance, and others will deem it an impertinence for a visitor to ask such a question out loud, much less assay/ an answer. So be it. An American lawyer trained at the bar of the Supreme Court of the United States is not so easily put off.

What seems clear is that the present arrangements are not working well. That is confirmed — if confirmation were needed — in two weighty volumes just published for the Institute of Race Relations*. Although all of the research was evidently completed, and most of the writing done, more than a year ago, there is no reason to suppose the findings are not still valid. While my question is not directly asked in either book, the unavoidable lesson of both is that the conciliation efforts of the Race Relations Board, the Community Relations Commission, their local committees, and of government itself, have not effectively controlled race discrimination in this country, and reasonably cannot be expected to do so.

Why not? Well, let us begin by taking a critical look at the existing scheme through American eyes — without immediately prejudging whether that viewpoint is appropriate here. On the surface, the British legislation — the Race Relations Act of 1968, largely repealing and superseding the 1965 Act — very Closely follows the American pattern, and much more promptly too. There are, to be sure, some rather jarring provisions, like the one permitting an employer to discriminate (whether in hiring, job

The Prevention of Racial Discrimination In Britain Simon Abbott (OUP for UNITAR and IRR £5) Community Action and Race Relations Michael J. Hill and Ruth M. Issacharoff (OUP for IRR £4.25)

assignment or promotion) to achieve or preserve the racial ' balance ' of his plant or office or shop, and the express exemption for white seamen who are not expected 'to share sleeping or eating or sanitary facilities with coloured shipmates. But, in most respects, the coverage is comparable or broader. Thus, here, the law, insofar as it protects a potential customer, reaches all those who perform services, whether a barber or a barrister, and all retailers and wholesalers (rather than only hoteliers, restaurateurs and operators of places of public amusement, as in America).

Yet all is not what it seems. When it comes to the enforcement procedure established, and the actual practice followed, there is a striking contrast between Britain and America. Beyond announcing its comprehensive prohibition, the Race Relations Act established the reconstituted Race Relations Board and the Community Relations Commission, but declined to give them the usual weaponry. The Commission, in truth, is not meant to be an enforcement agency and it accordingly has no legal powers whatever. More surprising is the Board's impotence. It cannot investigate at all unless it has very recent notice (from the victim or someone else) that a specific violation has occurred. Even then, the Board cannot compel the alleged discriminator (or anyone else) to appear before it, or to answer written questions, or to produce records. And if anything is admitted during the conciliation effort, it cannot be used in evidence if the matter should end in court. The Board itself can issue no orders of any kind. In fact, the Board's only legal power — one which it enjoys to the exclusion of both government and victim — is the right to apply to the courts if it cannot amicably resolve cases of alleged discrimination.

It follows that the full bite of the law in this area is confined to the judicial process. In Britain, this is not the obvious place to find creative radicalism. At all events, resort to the courts is meant to be, and has been, a very rare occurrence. And what is more, lest the judges be tempted to follow some of their American brethren, the Act very jealously circumscribes judicial discretion. If and when the Board chooses to invoke their aid, the courts can do no more than declare the violator to be such, assess actual damages against him, and enjoin him from repeating his offence. The victim cannot be given full redress in the many cases where that would call for an order directing the discriminator to tender a job, or a house, wrongly refused or taken away. Nor can the courts effectively assure the guilty party's future compliance by requiring him to post notices, keep records or make periodic reports. And, finally, the absence of any power to impose exemplary or punitive damages, much less criminal sanctions, makes it difficult for the courts to deter other potential violators who have little to fear except adverse publicity.

What then of government? By American standards the involvement of the executive branch is minimal. The power of the purse — with us very effective between national and local authorities and between government and its suppliers and contractors — has barely been used here. Except for a rare prosecution for violation of the surviving provision of the 1965 Act making it a crime to 'stir up hatred' against a racial or ethnic group (which has been invoked as often as not against black militants), the British law officers take no part. The Attorney General does not represent the Race Relations Board; on the contrary, his only appearance presumaby would be on behalf of the Crown if the Board were to institute legal proceedings against a government department. Under the 1968 Act the Department of Employment and Productivity has a role in employment cases, but it is really no more than that of conduit between victim, private industrial grievance committee and Race Relations Board, The only other statutory responsibilities given to the government are relatively minor administrative functions.

This pattern — majestic declarations accompanied by very weak enforcement machinery and minimal governmental involvement — was not, of course, the product of uninformed opinion. As more than one of the contributions in The Prevention of Racial Discrimination in Britain remind us, there had been, before the 1968 Act was drafted, many reports stressing that the North American experience counselled putting teeth into the anti-discrimination law. The decision to

rely on ' voluntarism,' 'education,' persuasion,' and 'conciliation,' rather than deterrence and coercion, was a deliberate one. And, except with respect to employment, where both the CBI and the TUC strenuously opposed a stronger law, it does not appear that ' political realities ' dictated the course followed. If, as some say, the passage of any anti-discrimination legislation in 1968 was a kind of miracle, full opportunity was not taken of the magic moment.

The result was no doubt part compromise between contending forces. But there were deeper reasons. The British talent for understatement, and distaste for overstatement, may have led to minimising the true dimensions of the potential problems. The lessons of the American experience were shunned as inappropriate here. Easily, too: the numbers were vastly different; Britain, at home at least, was not weighted down with the burden of centuries of legally enforced slavery, segregation and discrimination; America, after all, had made a mess of its race relations; and, perhaps most of all, British people were sensible and law-abiding, not extreme, violent and legalistic, so that here a polite admonition would serve where a club was necessary in America. And, finally, I suspect even most of the advocates of the legislation were held back a little by a nagging unease about the wisdom of introducing law at all into the area of private prejudice.

Their conclusion is that "the community relations movement has not been able to emerge as an effective force because of the unwillingness of the government to back it effectively, either with sufficient funds, sufficient power, or with policies compatible with the doctrine of racial equality for which it is supposed to stand." It may yet be time to rescue the community action approach with the prescription suggested here. But it must, I should think, be a massive dose, administered openly, even notoriously.

The very fact that the majority of the coloured population consists of recent immigrants presents special problems, for them and for the ' host ' community. Niceties of citizenship aside, the immigrants are commonly viewed as foreigners,' whose different colour is only one reason for hostility. And, also, while Britain does not have to 'live clown' its past within these islands, memories of discrimination abroad do linger and, perhaps more important, the government (in the hands of both major parties) does have to cope with the unavoidable implications of the current policy of sharply limiting coloured immigration in a period of net emigration. Even assuming that measures aimed at levelling oif, or even reducing, the numbers of coloured immigrants are justified as tending to calm the fears of the white majority and thereby reduce their hostility toward the newcomers, at the same time those measures must inevitably appear to some, both black and white, as teaching an official lesson that coloured are somehow undesirable. In these circumstances, it is remarkable that the established agencies, the Race Relations Board, the Community Relations Service, and government itself, can make any headway at all. But, surely, they need more t-NoIs.

In sum, the American experience is not so remote, after all. And, besides, most of the lessons to be derived — from our mistakes as well as our successes — have nothing especially to do with the peculiarities of the situation in the United States. Ordinary common sense, fortified by history, teaches us most of what is relevant: that declaratory law, while serving a limited educational function, carries the risk of becoming a mere unfulfilled promise to the angry victims whose expectations have been raised and a joke to the rest, if it is not enforced; that a few doses of strong medicine usually deter more effectively than endless exhortations; that temporising, equivocation, and delay embolden the discriminator and disillusion the victim's faith in the legal process; that visible and vocal governmental involvement, through funds, model conduct, and representation of the victim, can be critically useful; that legal remedies will not be sought unless they are made worth the trouble; that an administrative agency or tribunal often gains stature and respect when its monopoly of access to the courts is broken; that law and government in this area cannot afford to wait for public opinion to push it (especially when the push is in the opposite direction), but must lead it; and, finally, the most fundamental truth of all, that, once embarked on the course of dealing with race discrimination by law, credibility requires total commitment of the legal and governmental machinery to ensure dramatic successes, or, at least, dramatised successes (appearances being almost as important as deeds).

My fear is that Britain is missing an opportunity to profit by our mistakes and to nip in the bud by forceful measures a relatively minor, but worsening, race problem. The justly vaunted British way of working changes gradually, and solving problems quietly, by education and persuasion rather than coercion, does not seem equal to this new and special challenge. Law is only one aspect of the answer, but, used boldly, it can serve. Coming from a legal tradition where We ask courts to solve all the ills, even War and nuclear tests (albeit unsuccessful 10 the event), I no doubt overstate the

capacity of law. Yet, even here it must be true that, if law cannot make men angels' it can make them behave more like angels,'

which hopefully becomes a habit. What Is more, in Britain, a more conservative tradition insures against excesses if the established race relations agencies are fully armed and the courts themselves are unleashed. In the end, complacent inaction is far more perilous than committing 171°re law, and more government, to the task.