Frequently Asked Questions:
Race Relations (Amendment) Act 2000

What was the legal situation before the Race Relations (Amendment) Act 2000 (RR(A)A)?

The Race Relations Act 1976 (RRA) outlawed discrimination in employment and training, the provision of goods facilities and services, education, housing and certain other activities. It enabled individuals who had been discriminated against to bring proceedings and claim damages and it provided for the establishment of the Commission for Racial Equality (CRE). It left gaps, however, in its coverage of public functions.

What amendments did the Race Relations (Amendment) Act make to the Race Relations Act?

The Race Relations (Amendment) Act 2000 strengthened (it did not replace) the Race Relations Act. It met recommendation 11 of the Stephen Lawrence Inquiry Report (that the full force of race relations legislation should apply to the police) and went further.

Among other things, the RR(A)A outlawed discrimination (direct and indirect) and victimisation in all public authority functions not covered by the RRA, with only limited exceptions.

It also placed a general duty on specified public authorities to 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 in carrying out their functions.

The RR(A)A empowered the Home Secretary (or the Scottish Ministers where appropriate) to impose specific duties on some or all public authorities which are subject to the general duty to promote race equality to help them better to perform the general duty and to extend the list of bodies subject to the general duty.

It allowed for the CRE to issue Codes of Practice to public authorities on how to fulfil their general and specific duties to promote race equality.

It allowed for the CRE to take enforcement action against any public authority failing to comply with any specific duties imposed on it.

When did the RR(A)A come into force?

The RR(A)A came into force on Monday, 2 April 2001.

What public functions are covered by the RR(A)A?

Section 19B prohibits race discrimination in all public sector functions not previously covered by the RRA with certain limited and justifiable exceptions. Examples of functions the RR(A)A covers are:

• Law enforcement: for example, criminal investigations, arrest, bail, detention and stop and search by police officers and officers with similar powers such as Customs and Excise. Also enforcement action by tax officers, Environmental Health Officers, Trading Standards Officers and the Health and Safety Executive.
• Licensing: for example, the issuing of street trading licences, gaming licences, liquor licences, etc.
• Public appointments and the conferment of dignities and honours made on the recommendation of Ministers and the arrangements regarding all public appointments. For example, Crown appointments and the conferment of peerages and honours. In addition the termination of public appointments and the terms and conditions that are attached to public appointments.
• Core functions of the Immigration and Nationality Directorate of the Home Office. Specifically, where discrimination is not provided for in statute or expressly required or authorised by Ministers on the grounds of nationality, ethnic or national origin, plus any discrimination by immigration and entry clearance officials on the grounds of race or colour.
• Core functions of the Prison Service: for example, prison allocation, discipline, punishment and the searching of visitors.
• Core functions of the Probation Service: for example, the preparation of pre-sentencing reports and the revocation of community sentences.
• Certain compulsory detentions under the Mental Health Act.

What public functions were exempted from the extension of the RRA?

The main functions exempted and the justification for each is as follows:

• Both Houses of Parliament (this does not affect their existing coverage, e.g. for employment purposes), and proceedings in Parliament. This exemption reflects the sovereignty of Parliament and issues of Parliamentary Privilege.
• Core functions of the intelligence and security agencies (this does not affect their existing coverage, e.g. for employment purposes). To have included the intelligence and security agencies within the RR(A)A would have required changes with special clauses introduced to safeguard against claimants misusing certain provisions to undermine the agencies' operational effectiveness. For example, to prevent a claimant using a section 65 questionnaire to fish for sensitive information. The necessary safeguards would have had, in practice, the same effect as excluding the agencies from the RR(A)A. The Government felt it was better to make the exemption clear rather than obscured behind special clauses.
• Judicial acts by courts, tribunals, etc. To allow civil action against judges would interfere with the concept of judicial immunity. Judicial immunity is an aspect of the concept of an independent judiciary - a key feature of the British constitution. Independence means that judges are not controlled by the legislature or the executive. The Government believes that the correct venue for challenging judicial decisions is the Appeal Courts.
• Legislative functions of the Scottish Parliament, the National Assembly for Wales and Ministers. The Government did not want to fetter the legislative making powers of Ministers. Ministers remain accountable to Parliament, and their legislative powers remain subject to Parliamentary scrutiny.
• Decisions not to institute criminal proceedings and any act done for the purpose of enabling the decision. The Government believed that it was important to preserve the role of the criminal courts as the sole forum for determining guilt. This was recognised by the Phillips Royal Commission in 1981 which said that “publicly calling into question a decision not to prosecute could amount to a trial of the suspect without the safeguards which criminal proceedings are designed to provide". It was equally important to avoid the risk that disclosure of reasons not to prosecute could prejudice any ongoing or future criminal investigation or proceedings to which the decision was relevant.
• Immigration and nationality decisions provided for in statute or expressly required or authorised by Ministers. This exemption reflected the unique requirement for immigration and entry clearance officers to discriminate on grounds of nationality and ethnic or national origin as set out in instructions. The Government believed that the exemption provided a good balance between the needs of good government and the rights of individuals. Without it, for example, it would not be possible to operate policies of the kind operated for Kosovan Albanians during the Balkan conflict in 1999.

Why are Chief Officers of Police made vicariously liable under the RR(A)A?

All employers are vicariously liable for acts of racial discrimination by their employees. However police officers are not ‘employees’ they are ‘office holders’. The provision in the RR(A)A removed this anomaly in the 1976 Act, and brought the police into line with ‘employers’ such as the Prison Service, Fire Service etc.

Can individual police officers be held responsible for public actions taken under order?

The vicarious liability provisions in the RR(A)A do not affect the liability of individual police officers. The position of an individual officer under the RR(A)A is the same as the position in law generally. That is, where a police officer commits an unlawful act, that officer is liable, notwithstanding any potential liability of the chief officer. What the RR(A)A does is to increase the accountability of chief officers by making them vicariously liable for any racially discriminatory acts of individual police officers.

Who is financially liable for any awards made against the police under the RR(A)A?

The relevant Police Authority pays costs and damages awarded under the RR(A)A. This is in line with powers Police Authorities have to make settlements in other civil proceedings.

Is there a defence available to an employer, or to a chief officer of police, against vicarious liability?

It is a defence under the RR(A)A for an employer or chief officer of police to argue that he took such steps as were reasonably practicable to prevent the act of discrimination by an individual employee or officer as the case may be.

Where can claims or challenges be brought under the Act’s provisions and what are the remedies available?

Claims of unlawful discrimination are generally brought to County or (in Scotland) Sheriff’s Court. There are two exceptions to this:

1. First, in relation to claims of race discrimination against the immigration authorities where the claim relates to entitlement to enter or remain in the UK. In such cases, the claim is heard by the Immigration Appellate Authorities as part of the one-stop appeal procedure established by the Immigration and Asylum Act 1999. A claimant who substantiates his claim for discrimination is then able to apply to a County Court or Sheriff’s Court for damages. Claims of race discrimination against the immigration authorities which are unrelated to a claim for entitlement to enter or remain in the UK can proceed directly to the County or Sheriff’s Court in the usual manner.
2. Secondly, claims regarding public appointments are heard by the High Court or the Court of Session.

What about challenges in respect of the duty to promote race equality?

Challenges in respect of the general duty are brought in the High Court or Court of Session as judicial review is the only remedy here.

In respect of the specific duties, claims are brought via a complaint to the Commission for Racial Equality. The Commission is empowered to issue a compliance notice to an authority that is failing in any of its duties, and if necessary, to seek a court order to enforce a notice.

Is legal aid available to claimants under the RR(A)A’s provisions?

Funding is available to people who are financially eligible that is, whose income and/or assets fall below a certain level and whose cases pass the Legal Service Commission’s Funding Code. The Code sets out general conditions which must be met in order for cases to be supported by funding from the Commission. However, claims brought under the RR(A)A count as claims against public authorities and, in these instances, the general terms are not applied as strictly.