Race Relations (Amendment) Act: An EOR Guide

The Race Relations (Amendment) Act 2000 received Royal Assent on 30 November 2000. The Act strengthens the Race Relations Act 1976 by outlawing indirect racial discrimination by public authorities in carrying out their functions, and by introducing a new positive duty on public authorities to eliminate unlawful discrimination and promote equality of opportunity. Its main provisions are expected to come into force in April 2001.

Major changes were made to the legislation as it went through Parliament, after criticism of the original Bill led by Lord Lester and the Commission for Racial Equality (see EOR 90). The Act is part of the Government's response to the Macpherson report into the death of Stephen Lawrence (EOR 84). It also makes Chief Officers of Police vicariously liable for acts of discrimination by officers under their direction or control, and prohibits discrimination by Ministers or government departments in recommending or approving public appointments.

Discrimination by public authorities

Prior to the Amendment Act, race relations legislation had been interpreted by the House of Lords as meaning that a claim of race discrimination could not be brought against a Government department or other public authority in respect of the way in which they carried out their functions (in contrast to when they were acting as an employer, a service provider, or in respect of education or housing).

Section 19B(1) of the Amendment Act brings these functions within the scope of the Race Relations Act by providing that: "It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination."

The Act defines "public authority" differently in respect of the prohibition of discrimination on the one hand and the statutory duty to promote equality of opportunity (see below) on the other. A generic definition of "any person certain of whose functions are of a public nature" applies in respect of s.19B, with some specific exceptions listed in the Act. This is based on s.6 of the Human Rights Act 1998. It also will apply to any private or voluntary organisation carrying out a public function, such as where those functions have been privatised.

As regards the statutory duty, a listing approach has been adopted. Schedule 1A to the Act defines "public authority" as encompassing central and local government, the National Health Service, education bodies, and the police and fire services.

The legislation provides that it is unlawful for a public authority to discriminate directly or indirectly on racial grounds or by victimisation in carrying out its functions. The right to challenge decisions on grounds that they are indirectly discriminatory was a key amendment made during the course of the Act's Parliamentary passage. Introducing the provision, Mr Mike O'Brien, the Parliamentary Under-Secretary of State for the Home Department, said: "We concluded that although the Government implement economic and social policies based on requirements or conditions that will inevitably have a differential impact on different racial groups - whether because of different age profiles or regional distribution - these were justifiable. If challenged, therefore, we believe that a court would be likely to reach the same conclusion and not find them unlawful. Case law in employment and the provision of goods, facilities and services under the Act has shown the courts to have given public authorities a fair wind when deciding cases of indirect discrimination. That provided some comfort, both on the risks to our policies overall, and to those that benefit ethnic minorities the most."

General duty

The Amendment Act replaces the duty on local authorities in s.71 of the 1976 Act with a new general duty that applies to all public authorities. New s.71(1) provides:

"Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need -

(a)to eliminate unlawful racial discrimination; and

(b)to promote equality of opportunity and good relations between persons of different racial groups."

This new duty, in effect, imports the concept of mainstreaming into public authority decision-making. It means that public authorities will be expected to consider the race relations implications of their administrative decisions. According to Mike O'Brien: "The Government regard the promotion of equality as a positive way to eliminate discrimination and, in particular, what the Stephen Lawrence inquiry drew attention to as institutional racism. Setting targets for ethnic minority recruitment, retention and promotion, and guidelines for mainstreaming race equality into policy development and implementation are examples of how race equality can be promoted in public services." The CRE suggests that public authorities "will be expected to consider the implications for racial equality of everything they do; for example allocating council housing, closing or opening a hospital or a school, and managing prisons, among many others."

The general duty will be enforceable by way of judicial review.

Specific duties

The general duty under s.71(1) will be amplified by specific duties on public authorities imposed by the Home Secretary. Section 71(2) provides that: "The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1)." It became clear during Parliamentary debate that these specific duties may include duties in respect of employment policies.

The specific duties will be enforceable by the Commission for Racial Equality, who are given powers to issue a compliance notice and to apply for a court order requiring a public authority to comply with a requirement of a compliance notice.

The Government has stated that there will be public consultation prior to the introduction of secondary legislation to impose specific duties on public authorities to promote race equality, and that different specific duties may be appropriate for different kinds of body. "Orders could, for example, require particular bodies to produce and publish equality plans, to monitor the delivery of services, or to monitor the ethnic origin of staff."

The Parliamentary Secretary, Privy Council Office, Paddy Tipping, gave local authorities as an example: "In a social services department, areas in which policy will need to have some focus would be the kind of meals on wheels that are supplied to the entire community, and the variety of choice that there is. Similarly, the care of people from a black and Asian background in residential accommodation is a difficult and complex area. It will be important for local authorities to consult about that, introduce policies and have ways of measuring those policies to ensure that people from a black and Asian background really are taking up meals on wheels and, if not - as is often the case these days - why not. It is important for local authorities to take that into account in relation to social policies.

"It is also important for local authorities to follow this approach in relation to their employment policies. Some do, very satisfactorily, but some do not. If public authorities claim to be equal opportunities employers, as many do, but do not appear to deliver when one considers their work force, it is important that local authorities consult all the community and have policies that are acceptable to the community on the way in which staff are advertised for and recruited. They should ensure that if people from any ethnic background are not represented and there appear to be handicaps in the way of that happening, they should introduce policies to resolve the matter."

It is intended that the Commission for Racial Equality will issue codes of practice giving guidance to public authorities about how to fulfil their new duties. This is likely to be "towards the end of 2001". The specific duties will be enforceable by the CRE, who are given powers to issue a compliance notice and to apply for a court order requiring a public authority to comply with a requirement of a compliance notice.