Archived decisions

Hampshire Police Authority Item 8

30 April 2002

Race Relations (Amendment) Act 2000

Report of the Clerk

Contact: Sharon Jackson. 01962 871595

1. INTRODUCTION

      The Race Relations (Amendment) Act 2000 came into force on 2 April 2001. The new Act amends the Race Relations Act 1976 and strengthens its application to public authorities in several important ways:

      · it extends the scope of the 1976 Act to cover areas that were previously excluded, and makes it unlawful for public authorities to discriminate on racial grounds in carrying out any of their functions

      · it places a general statutory duty on a wide range of public authorities to promote racial equality and prevent racial discrimination

      · it gives the Home Secretary the power to make Orders imposing specific duties on all or some public authorities bound by the general duty. These specific duties will be enforceable by the Commission for Racial Equality (CRE), serving compliance notices, backed up by court orders, if necessary

      · it gives the CRE powers to issue statutory codes of practice, providing practical guidance to public authorities on how to fulfil both their general and specific duties to promote racial equality

      · The critical feature of the new duty is that it will be enforceable. If the CRE is satisfied that a public authority is not complying with its specific duties, the CRE will be able to serve a compliance notice. This will require the authority to comply with its duties and inform the CRE of the measures it has taken. If necessary, the CRE can ask the county court to order the authority to comply.

      Compliance with the new duty could also be the subject of inspection or audits by, for example, in the case of police authorities, by Her Majesty's Inspectorate of Constabulary and the Audit Commission.

2. BACKGROUND

      The 1976 Act remains the basic law in Great Britain that defines and outlaws racial discrimination, and that gives individuals the right to seek legal redress for acts of racial discrimination. The 1976 Act also established the CRE, with powers to investigate and take enforcement action.

      The Stephen Lawrence Inquiry Report, published in February 1999, has been a catalyst for much of the change introduced by the new Act.. While the Inquiry was concerned primarily with policing, the report made it clear that few institutions in Britain had room for complacency. The report put forward a definition of `institutional racism'( that could be applied to any institution, and recommended that:

      "it is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities" (Stephen Lawrence Inquiry Report para 46.27).

3. RACIAL DISCRIMINATION

3.1 What is racial discrimination?

      Racial discrimination may be either direct or indirect.

      Direct discrimination occurs when a person (including a company or a public authority), on racial grounds, treats someone less favourably than others in similar circumstances. Racial grounds are grounds of colour, race, nationality (including citizenship) or ethnic or national origin.

      Indirect discrimination occurs when a condition or requirement which is applied equally to everyone can be met by a considerably smaller proportion of people from a particular racial group, and it is to their disadvantage because they cannot comply with it. The condition or requirement will be unlawful unless it can be justified on non-racial grounds. Under the Act, a racial group is a group of people defined in terms of colour, race, nationality (including citizenship) or ethnic or national origin.

      Victimisation occurs when a person is treated less favourably than others for having made, or supported, a complaint of racial discrimination'.

3.2 When is racial discrimination unlawful?

      The 1976 Act makes it unlawful to discriminate on racial grounds in employment and training, in housing and education and in the provision of goods, facilities or services. It applies to all sectors: public, private and voluntary.

      Section 1 of the 2000 Act adds a new section, 19B, to the 1976 Act, outlawing racial discrimination in public authority functions that were not covered by the original Act, such as:

      · use by the police of stop and search powers

      · collection of taxes

      · regulation of street trading

      · investigation of benefit fraud

      · detention of mentally ill patients

3.3 Who is liable for acts of racial discrimination?

      The 1976 Act (section 32) makes employers, in both the public and private sectors, vicariously liable for acts of unlawful discrimination by their employers, even if the employers did not approve, or even know about, the acts in question. Since 2 April 2001, this includes chief officers of police, who will be vicariously liable for all acts of discrimination by constables under their control.

      Employers will not be liable, however, if they can prove that they took `such steps as were reasonably practicable' to prevent the discrimination (section 32(3)), such as following the CRE's existing statutory codes of practice in employment and housing, or adopting the CRE's published standards for racial equality in employment, local government and schools.

3.4 Is there a right of redress against racial discrimination?

      Anyone who believes they have suffered racial discrimination through the acts or omissions of a public authority, or a private or voluntary organisation, can bring proceedings under the 1976 Act. Most complaints will be heard in employment tribunals.

      The CRE has power under the amended 1976 Act to conduct formal investigations into any functions of public authorities. This power will continue to apply in relation to private and voluntary organisations.

4. THE GENERAL DUTY TO PROMOTE RACIAL EQUALITY

4.1 What is the general duty?

      The general duty placed on public authorities is set out in section 71(1) of the amended Act:

      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 -

      · to eliminate unlawful discrimination; and

      · to promote equality of opportunity and good relations between persons of different racial groups.

4.2 To whom does the general duty apply?

      Schedule 1A to the amended Race Relations Act lists the public authorities to which the general duty will apply. The public authorities currently listed in Schedule 1A are mainly larger bodies such as central Government Departments, local authorities, the police and armed forces (this also includes police authorities established under section 3 of the Police Act 1996).

      Responsibility for complying with the duty rests with the authority or body listed in the Schedule; for example the members of a local authority, a school governing body or a health authority or board. The general duty applies only to the public authorities listed in the Schedule, and they remain responsible for complying with it, even if they have contracted out some of their functions to private or voluntary organisations.

4.3 What does the general duty mean in practice?

      The aim of the general duty is to `mainstream' the elimination of discrimination and the promotion of equality of opportunity and good race relations, by making these an integral part of the way public functions are carried out.

4.4 `To have due regard'

      By phrasing the general duty in this way, parliament has made it clear that public authorities do not have the option to decide whether they will do anything about discrimination and racial equality. Each public authority should therefore assess where, and how, racial equality is relevant - or potentially relevant - to the way they carry out their various functions.

      For all public authorities, regardless of their specific functions, racial equality will always be relevant to all aspects of employment - recruitment, selection, training, promotion, discipline and dismissal. To comply with the general duty, therefore, all authorities should `equality proof' their employment policies, procedures and practice, and take steps to prevent discrimination.

5. COMPLYING WITH THE GENERAL DUTY

      Public authorities will be responsible for ensuring that the general duty is an integral part of any function where racial equality is relevant. The authority will have to define its functions and then assess the impact on racial equality of what it is currently doing and what it is proposing to do. Where current or proposed policies conflict with the elimination of racial discrimination or the promotion of racial equality and good race relations, a public authority will be expected to comply with the general duty, and then make those changes.

      Detailed guidance can be found in the CRE standards for employers, local authorities and schools. Posing questions along the lines suggested below should help the authority to identify the measures it needs to take:

      1. Which of our functions are covered by the requirements of the general duty?

      2. How should we measure the impact on racial equality of our policies and procedures and how they work in practice?

      3. How can we assess the impact on racial equality of policies we are proposing to introduce?

      4. How can we mainstream racial equality into our functions?

      5 How can we build racial equality into all aspects of employment in the authority?

5.1 Does the general duty apply to private or voluntary organisations carrying out a public authority's functions?

      The general duty applies only to public authorities listed in Schedule 1A to the 2000 Act: it does not apply to private and voluntary organisations. However, the general duty does apply to the arrangements that a listed public authority makes for its functions to be carried out by a private or voluntary organisation. The authority should therefore give careful thought to the question of how it is complying with the general duty when it is discharging its functions through others

      The general duty does not override other laws or regulations affecting public procurement. Public authorities listed in Schedule 1A will be expected, within the existing laws, to avoid discrimination and to appropriate measures to promote racial equality in setting criteria and deciding who should be awarded contracts or grants.

5.2 How will the general duty affect a public authority's participation in partnerships?

      Increasingly, public authorities are encouraged or required to collaborate with other public, private or voluntary sector organisations; for example youth offending teams.

      The general duty applies to the way a public authority listed in Schedule 1A carries out its functions within the partnership. In partnerships where other members of the partnership are also listed public authorities, the general duty will then apply fully to all deliberations, decisions and action by the partnership.

      In partnerships where other members are private or voluntary organisations, the listed public authority should ensure that, where relevant, the activities of the partnership comply with the general duty.

5.3 Is the general duty enforceable?

      An individual or an organisation, including the CRE, may be able to apply to the High Court for a judicial review of a public authority's alleged failure to comply with its general duty. The CRE's power of enforcement apply to the specific duties that the Home Secretary imposes.

5.4 Audits and Inspections

      Agencies responsible for auditing or inspecting public authorities will be expected to include compliance with the general duty as one of the matters they will examine and report on. As these agencies - such as, Her Majesty' Inspectorate of Constabulary - are themselves subject to the general duty, they should be building racial equality measures into their audit or inspection procedures, or strengthening and making more explicit those they already have.

6. SPECIFIC DUTIES / CODES OF PRACTICE AND ENFORCEMENT

6.1 What are specific duties?

      The 2000 Act (section 71 (2) - (3)) empowers the Home Secretary to impose, by Order, specific duties on all or some of the public authorities listed in Schedule 1A, `for the purpose of ensuring the better performance of the general duty'. Authorities will therefore want to ensure that any procedures introduced after 2 April 2001 in order to comply with the general duty also take account of the specific duties likely to be imposed on them.

6.2 What will the CRE Codes of Practice cover?

      The CRE code of practice will offer practical guidance to public authorities to help them to comply with both the general duty and any specific duties imposed by the Home Secretary. Failure to follow the code will not in itself be ground for legal action, but the code will be admissible in evidence if it is relevant to a case that is before a court or tribunal.

6.3 Are the specific duties enforceable?

      The CRE has the power to enforce the specific duties imposed on listed public authorities once they have come into force (section 71D). Under the 2000 Act, if the CRE is satisfied that a public authority has failed to comply with any of its specific duties, it may serve a `compliance notice'. This notice will require the authority to comply with its specific duties, and to inform the CRE within 28 days of the measures it has taken; the CRE can also require the authority to provide written information verifying compliance. If, after three months, the authority has not complied with the CRE's notice, the CRE can ask the county court to order the authority to comply.

6.4 Individual complaints

      Individuals do not have the right to take legal action against a public authority because it has not fulfilled its specific duties. However, individuals, community organisations, trade unions and others should notify the CRE if they are concerned that a public authority has failed to comply with its specific duties. The CRE would consider how its enforcement power could be used.

7. SUMMARY AND CONCLUSIONS

      In summary, the government is proposing the following specific duties to be applied to all public authorities:

        · Ethnic monitoring of staff

        · Training of staff in race equality

        · Identify which of its functions and policies are relevant to the general duty and to review this every three years

        · Assess the impact of its existing and new policies on race equality,

        · Ensure ethnic minorities have equal access to information and services

        · Annual reporting on the above

        · All of the above to be set out in a published scheme

      These duties, once finalised, will not be negotiable. They will be required, and the CRE will have enforcement powers that will enable it to issue a compliance notice or, failing that to have a court order issued.

      The CRE will be issuing a code of practice to guide the implementation of the specific duties.

      The purpose of this new law is to make best practice common practice and to act as a charter for mainstreaming race equality.

      "The Race Relations (Amendment) Act 2000 and the CRE Codes of Practice that will accompany it should be seen as the tools needed by managers and elected members to transform and modernise Britain's public sector". (CRE May 2001)

8. SPECIFIC ACTION REQUIRED

      The Authority must prepare and publish a Race Equality Scheme by 31 May 2002, setting out how the Authority plans to meet the general and other specific duties to promote race equality. The Force has a similar responsibility to that of the Authority. Work in this area is ongoing and the Scheme will be published on the Authority websites by the deadline of 31 May. A further report will be submitted to the meeting of the Authority in June in this respect.

      RECOMMENDATIONS:

    (a) That the report be noted.

    (b) That the responsibility to ensure the scheme is produced and published by 31 May, 2002 be delegated to the Chairman and Clerk of the Authority.

    (c) That a report on this matter be presented at the meeting of the Authority in June, 2002.

Section 100D - Local Government Act 1982 - Background Papers:

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1. Published works.

2. Documents which disclose exempt or confidential information as defined in the Act.

TITLE LOCATION

Race Relations Act 1976

Race Relations (Amendment) Act 2000 Police

Commission for Racial Equality Consultation Drafts: Authority

      "Statutory Code of Practice on the duty to promote race equality" and Office

      "Guide for Public Authorities on the Statutory Code" December 2001

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