My apologies for not producing the second part of my blog speedily. During early September I was abroad and have subsequently had to catch up on a number of personal and professional matters. Time always seems to be running out….
At the end of Part 1 (see August post - below) I summarised the position as follows:
...it is not “discrimination” to fund certain groups to provide certain and specific services that meet certain needs in certain ways (such as BME/Women’s or LGBT groups). Indeed the reverse applies. If services are provided “to all” in the same way this is likely to result in unequal, unfair and inappropriate services. This is particular so if there is a history of unequal and unfair treatment that continues and it is right for this to be addressed in this way.
The legal situation in the UK also backs this up. The law (Race Relations Act; Sex Discrimination Act and subsequent regulations in respect of sexual orientation and religion/belief) defines unlawful “discrimination” in two ways:
direct discrimination (less favourable treatment based on a protected characteristic (e.g. colour or gender …) and
indirect discrimination - “a provision, criterion or practice” that, on the surface, treats everyone the same, but has the effect of treating some groups disproportionately less favourably or unfairly. This definition of discrimination reflects the reality that I have described in Part 1, that “treating people the same” in the provision of services can in certain circumstances result in unfairness and discrimination and, when it does, such treatment may be illegal!
Whilst not a legal concept, the definition of “institutional discrimination (racism)” that came to prominence following the Macpherson Report into the death of Stephen Lawrence, closely mirrors the legal concept of “indirect discrimination”. Institutional discrimination (racism) is defined as:
"The collective failure of an organisation to provide an appropriate and professional service to people (because of their colour, culture or ethnic origin) which can be seen or detected in processes; attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and (racist) stereotyping which disadvantages (minority ethnic people)".
The idea that by not “treating everyone the same” public bodies are acting illegal has gained prominent in recent years, but it is often conveniently forgotten that the more prevalent, “institutional”, pervasive and extensive forms of unfairness, discrimination and disadvantage are caused by treating everyone the same (indirect discrimination/institutional discrimination)!
This perceived conflict between these two definitions of unlawful discrimination has recently been considered by the courts in the case of Southall Black Sisters– v – London Borough of Ealing.
Lord Justice Moses, in his judgement stated:
“Throughout the process (of making decision in respect of funding community groups) it is plain that Ealing (Council) believed that cohesion could only be achieved through making a grant to an organisation which would provide services equally to all within the borough. It is also clear that one of the main reasons for reaching that conclusion is that it was necessary in order to achieve community cohesion. (My emphasis)”
He went on to quote the Race Relations Act 1976 (Section 35) which states:
"Nothing in Parts II to IV will render unlawful any act done in according to a person of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare or any ancillary benefits."
He then makes a profound point which reflects my arguments to date:
"The importance of Section 35 is that it recognises that the elimination of discrimination and the promotion of equality requires indirect discrimination to be eliminated and equality for those who are the victims of indirect discrimination may require their special needs to be met. That those twin objectives may require positive action is acknowledged in Section 37 and Section 38 of the 1976 Act. Section 35 is not an exception to the 1976 Act. It does not derogate from it in any way. It is a manifestation of the important principle of anti‑discrimination and equality measures that not only must like cases be treated alike but that unlike cases but must be treated differently.”
Ramming home the message he continues:
"Ealing (Council) now acknowledges that …There is no dichotomy between the promotion of equality and cohesion and the provision of specialist services to an ethnic minority. Barriers cannot be broken down unless the victims themselves recognise that the source of help is coming from the same community and background as they do.Ealing's mistake was to believe that cohesion and equality precluded the provision of services from such a source. It seemed to believe that such services could only lawfully be provided by a single provider or consortium to victims of domestic violence throughout the borough. It appreciates that it was in error and that in certain circumstances the purposes of Section 71 and the relevant statutory code may only be met by specialist services from a specialist source…." (My emphasis)
Finally he says:
"As I have endeavoured to explain, specialist services for a racial minority from a specialist source is anti‑discriminatory and furthers the objectives of equality and cohesion. I can do no better than to conclude this judgment ‑ before giving the agreed order ‑ by quoting the chairman of the Equalities Review in the final report Fairness and Freedom, published in 2007:"An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people's different needs, situations and goals and removes the barriers that limit what people can do and can be."”
So, in the view of Lord Justice Moses, the legal situation is clear:
- Treating people the same (in the way public or other services are delivered to the community) may be illegal.
- In certain circumstances, services can only be provided effectively and equitably by specialist services that meet the needs of certain communities who have been historically discriminated against or are marginalised or excluded
- This is a core principle that underpins an equal and fair society.