Anti-racism campaigners have long turned to the legal system for help, whether that be to tackle the injustice of slavery in the 1770s, or the racial bias of facial recognition technology in the 2020s. But just how helpful have legal processes been for challenging racial injustices? As outlined in a new report that I have written for the Baring Foundation, the legal system can frustrate the pursuit of racial equality. However, the report also sets out what civil society organisations, lawyers, and the government can do to improve the use of the law to tackle racial injustices.
To explain the scope of the problem, it is helpful to explore how legal rules have developed from being staunchly pro-racist, to being broadly anti-racist. This overview puts the problem into stark relief: if the law on paper should be useful to anti-racists, why do campaigners and lawyers struggle to fight racial injustices in the courts? The answer to this lies in the systems and processes that stymy the effectiveness of the law.
We can start by looking at what the law said about slavery and colonialism. During the 1600s and 1700s, courts and senior legal officials were quite content to declare that people from Africa could be classed as ‘merchandise’ for the purposes of legal transactions, since they were commonly bought and sold. Even when Chief Justice Mansfield stated that slavery is ‘so odious’, he still questioned whether it would be desirable to let people from Africa roam the streets of England freely. In the 1800s and early 1900s, the government used a variety of legal rules to enable and justify the mistreatment of people in the colonies of the British Empire. In Kenya, for example, indigenous Kenyans were forced by law to work for British settlers, and the law was used to detain, torture, and execute those who dared to resist.
The law’s relationship with race evolved after the Second World War. The British Nationality Act 1948 appeared to recognize the legal rights of those who lived in the colonies, but the cultural and social antipathy to immigrants during the 1950s led to the Commonwealth Immigrants Act of 1962, which gave legal sanction to racist views. The following year, a boycott in Bristol in protest at a bus company’s racially discriminatory employment practices gained national and international attention, which led to the enactment of the Race Relations Act in 1965. This was the first Act of Parliament to expressly outlaw racial discrimination, and it has been followed by a whole range of laws that intend to outlaw discrimination and incidents of ‘racial hate crimes’, spurred by the racially aggravated murder of Stephen Lawrence in 1993. Today, on paper at least, legal rules offer hope for those concerned with righting racial wrongs.
But despite these advances, advocates for racial justice still struggle to find solace in the law. For example, the victims of the Windrush scandal have struggled to secure compensation for the distress they’ve suffered; young Black men in particular still suffer disadvantage and discrimination in the criminal justice system, with the courts refusing to address the problem of racially discriminatory stop and searches. And even when courts have decided in favour of victims of racism, the decisions rarely instigate much needed societal and cultural changes. Despite rulings chastising employers for race discrimination, for example, the problem still persists.
There are at least three reasons why advocates for racial justice have struggled with the legal system. First, legal rules are something of a holy grail: enticing and full of promise, but almost impossible to access. Cuts to legal aid have made it difficult for victims of racism to deploy the services of a solicitor, and lawyers have lacked the resources to conduct the work required to litigate effectively. In these cases, it does not matter what the law says on paper; what matters is the inability to make use of these laws. Second, the adversarial nature of legal processes can exacerbate racial tensions. You may defeat your employer in an Employment Tribunal hearing, but you’ll bear the cost of that victory when you return to work the next day. Third, lawyers and those who work in civil society organisations are not necessarily trained to be anti-racist, and so do not always see the undercurrents of racially discriminatory practices. For someone not schooled in racism, either through life experience or education, it can sometimes be difficult to spot racism in action. Lawyers need to be trained, for example, to identify when a police officer is making prejudicial statements about a black person even if that officer is not explicitly referring to the individual’s skin colour. The Howard League for Penal Reform, in association with Black Protest Legal, recently published a guide on anti-racism for lawyers working in the criminal justice system, but there is scope for similar guides for those working in other fields.
If the law in practice is going to meet the promise of the law on paper, the government needs to reverse the cuts to legal aid that have brought the justice system to its knees. However, the prospect of the government increasing access to justice might seem remote at best. If anything, the government appears to be intent on returning to the days when laws were explicitly racially discriminatory.
The Police, Crime, Sentencing and Courts Bill which is currently working its way through Parliament has been described as ‘a racist law’ by those concerned with the rights of Gypsy, Roma and Traveller communities, because it will effectively criminalise their way of life. If this Bill becomes law, its impact will extend to all racialised people because it will send a signal that the law exists to create and entrench racial injustices. For now, then, it is imperative for campaigners and lawyers to engage with anti-racist training and consider the appropriateness of formal legal action in any given case, because while the law can be a powerful weapon on the armoury of anti-racists, more holistic approaches are needed in the pursuit for racial justice.