Laying Down the Law: Reflections on the report of the Commission on Race and Ethnic Disparities
A generous reading of the report of the Commission on Race and Ethnic Disparities (CRED) would attribute much of its findings to a desire on the part of its authors to see social class added to the list of protected characteristics covered by the Equality Act 2010 (EA) - thereby rendering discrimination which is motivated by class status an actionable wrong (for further discussion of this potential ground of discrimination, see Benn 2020: 30-67). Undoubtedly, by subjecting to the scrutiny of the law the systems and processes that create the “acute geographical inequality” (CRED 2021: 37), that, among other factors, cause “[w]hite working-class children [to] trail behind their peers in almost all ethnic minority groups'' (CRED 2021: 29), the CRED would come closer to its stated objective of “improving outcomes for all” (CRED 2021: 39). However, the absence of even the most tentatively drawn recommendation to this effect - among the twenty-four contained in the report (see CRED 2021: 12-26) - negates any suggestion that the CRED orients toward legal amendment of this kind.
It seems that, not content with engaging in mere law reform, the CRED seeks to lay down the law in the most fundamental sense. Despite the claim that “the spirit of BLM was the original trigger for [the] report” (CRED 2021: 7), its primary function is to create an origin tale designed to accompany and cement the UK’s recent emergence from the European Union in the guise of an “independent coastal state” (TCA 2020: 7). The report announces the advent of a “new period” (CRED 2021:7). However, it soon becomes apparent that there is nothing at all new about the way in which the CRED’s origin tale is constructed and nothing new about the way in which the so-called “era of [participation]” (CRED 2021: 7) will be ushered in.
In October last year, the Equalities Minister, Kemi Badenoch, made a statement during a parliamentary debate on Black History Month in which she positioned the UK government as being “unequivocally against critical race theory” (Hansard: 20 October 2020). The CRED appears to endorse the view that what it refers to as “bleak new theories about race” (CRED 2021: 233) hold no place in the UK’s new origin story. It is unfortunate that the rich intellectual resources that make up the diverse field of critical race theory were not allowed to inform the working practices of the CRED - for these theories illustrate that origin narratives of the kind that the CRED report constructs can only gain the appearance of internal coherence by relegating to a pre-modern realm those who would dispute that post-Brexit Britain is open to all of its communities (see CRED 2021: 28)); muting their voices and erasing their writings.
That the CRED adopted a strategy of actively covering over the violence done to Black, Asian and other Minority Ethnic groups is the only way to explain the otherwise unaccountable omission of the Windrush: Lessons Learned review from the list of past investigations relating to racial and ethnic diversity which the CRED draws upon (see CRED 2021: 10). The lawless actions that the descendants of the Windrush generation suffered at the hands of the British state warrant just two brief mentions in the CRED report. First, the Windrush dispossessions are recorded as one example of “recent instances where ethnic minority communities have rightly felt let down” (CRED 2021: 28). The second mention is placed in the conclusion. Here, the acknowledgement of “egregious acts of discrimination” (CRED 2021: 234) is immediately followed by the assertion that we must all “[focus] on what matters now, rather than refighting the battles of the past” (CRED 2021: 234). The strategy of disavowal also explains why the report problematizes “the language of race” (see CRED 2021: 33-37). To the extent that this language includes the notion of institutional racism, it is also the language of the Equality Act 2010 (EA). It is regrettable, to say the very least, that, by discrediting the contexts in which the concept of institutional racism are currently deployed, the CRED chose not to encourage stakeholders to work toward strengthening and expanding the public sector equality duty (PSED) contained in section 149 of the EA. With the foregoing in mind, we might now revisit the initial premise that the CRED potentially opens up a way toward an amendment of the EA to include social class among its other nine protected characteristics. What we see instead is the CRED downplaying acts of discrimination in relation to which there is a high degree of consensus over the need for legal protection (racial discrimination), and valorising (relatively speaking) acts of discrimination (social class discrimination) in relation to which there is no such consensus.
Finally, what is to be made of the recommendation that “the government move away from the use of the term ‘BAME’, to better focus on understanding disparities and outcomes for specific ethnic groups'' (CRED 2021: 26, recommendation 24)? Arguing that “an aggregate term like BAME has outlived its usefulness” (CRED 2021: 33), the CRED report, read as a whole, reveals that disaggregating the BAME category is a necessary precondition for the construction of the new origin tale of an open Britain in which all ethnic groups participate. Thus, having for the purposes of the report disaggregated the category, the report authors go on to perform a classic ritual which postcolonial scholars have long associated with the various modes in which colonial narratives of origin were assembled. In the effort to “reclaim [the] British heritage” (CRED 2021: 8); to realise the “ideal for a modern UK best encapsulated by what we saw in the opening ceremony of the London 2012 Olympics” (CRED: 2021: 28), the lives and achievements of forward looking and forward thinking “successful minority professionals'' (CRED 2021: 234) are contrasted with the mythical beliefs of those ethnic minorities who are portrayed in the report as thoroughly unmodern: wedded to “a fatalistic narrative that says the deck is permanently stacked against them” (CRED 2021: 8 & 31) and stubbornly attached to a past “captured by the old idea of BAME versus White Britain". (CRED 2021: 233).
The Minister for Equalities, Kemi Badenoch, delivered her speech at 6.48pm. The full parliamentary debate can be accessed here: https://hansard.parliament.uk/commons/2020-10-20/debates/5B0E393E-8778-4973-B318-C17797DFBB22/BlackHistoryMonth
Alex Benn, ‘The Big Gap in Discrimination Law: Class and the Equality Act 2010’ , 3(1) University of Oxford Human Rights Journal, 2020: 30-67.
Commission on Race and Ethnic Disparity: The Report, March 2021.
Trade and Cooperation Agreement Between the European Union and the European Atomic Energy Community of the One Part and the United Kingdom of Great Britain and Northern Ireland of the Other Part, 24 December 2020. (TCA 2020).
Wendy Williams, Windrush: Lessons Learned Review: Independent Review by Wendy Williams, March 2020.