Racial justice and the law: where do we go from here?

Next year will mark the 60th anniversary of the Race Relations Act 1965, which is widely regarded to be a watershed moment in the legal system’s relationship with the struggle for racial justice. Prior to 1965, the legal system was generally (though not always) used to create and sustain racism across the British Empire, from judicial declarations that enslaved Black people did not enjoy the same legal rights as free White Englishmen, to the legal use of violence to suppress opposition to colonial rule. The Race Relations Act, though, seemed to signal a shift towards the use of law to tackle, rather than create, such injustices. Even though the provisions outlawing racial discrimination were limited in scope, it was the first time that an Act of Parliament expressly condemned racial discrimination in mainland Britain. The Act therefore gave hope to racial justice activists that the power of the legal system could now be harnessed in pursuit of their aims. However, as I set out in my book, Racial Justice and the Limits of Law, this has not necessarily been the case. The legal system has been both a help and a hindrance, and the impending anniversary of the Act provides us with an opportunity to reflect on why the relationship between law and racial justice has been paradoxical over the last 60 years, and to discuss how anti-racist lawyers and campaigners might make better use of the law.

It is worth being clear about the ways in which the law both helps and hinders the cause of racial justice. On the one hand, the post-1965 legislative framework appears to be in favour of racial justice, with amendments and extensions to the Race Relations Act and several laws that criminalise acts of racial hatred. The Equality Act 2010 also compels public authorities to adopt proactive measures to improve race relations. But on the other hand, Parliament has often passed legislation that runs counter to the imperatives of racial justice. Since 1965, there have been several measures in the context of immigration and asylum which disadvantage people racialised as ‘Brown’ or ‘Black’. These laws stretch from the Commonwealth Immigrants Act 1968 through to the Illegal Migration Act 2023. And the recent Police, Crime, Sentencing and Courts Act 2022 effectively criminalises the way of life of people from a Gypsy, Roma, or Traveller heritage. In terms of the judiciary, for every decision that has condemned racism, judges have also expressed racial biases and prejudices. Indeed, the depth and breadth of racism within the judiciary has recently been outlined in the pages of this magazine by Keir Monteith KC, drawing on a report that he co-authored, titled Racial Bias and the Bench (see ‘Racial Bias and the Bench’: one year on’, Counsel, March 2024 and ‘RBB’s 10 next steps for an anti-racist justice system’, Counsel, February 2023). It is worth noting, then, that not much has changed since Anthony Lester and Geoffrey Bindman wrote in 1972 (Race and Law in Great Britain: Harvard University Press) that:

‘With one face, the law embodies and reinforces racial inequality; with the other, it expresses and urges racial equality.’

Continuities between past and present

In my book, I suggest that anti-racist lawyers and campaigners who want to make more effective use of the law must get to grips with the reasons for the contemporary limits of law, and must school themselves in critical race theory. This requires a lesson in history, as too few law students and practitioners in England and Wales have a grasp of how the law was used to create and sustain racism in the era of colonialism, and the complex ways in which this manifests itself in contemporary legal processes. Tracing the continuities between past and present, I argue, gives credence to some of the central tenets of critical race theory, which include the assertions that racism is structural, and that the voices of those with experience of racial injustices should take centre stage in antiracist efforts. These insights, I suggest, can help develop antiracist approaches to lawyering.

Although the explicitly racist laws of the colonial era have largely been abandoned, there are many examples of how the cultural views that reflected and shaped those laws have survived and manifest themselves in the application of seemingly race-neutral laws today. Consider, for example, the links between the Criminal Tribes Act 1871 in British-ruled India, with contemporary measures to tackle so-called ‘gangs’ in the UK. In 1871, brown-skinned people of certain social groups in India were classified as inherently criminal, and thus subject to increased monitoring and surveillance and heightened punitive measures. While we do not have such explicitly racially discriminatory laws today, the underpinning attitude of the 1871 Act – that some people can be presumed to be criminal because of their culture and heritage – finds expression in the way in which so-called ‘gangs’ are policed today. The doctrine of joint enterprise enables prosecutors to charge multiple people for a single criminal offence without having to prove which person committed the criminal act in question, and there have been numerous studies that show that young Black men in particular are disproportionately subject to such prosecutions as they are assumed to be part of criminal gangs. Put another way, the doctrine of joint enterprise has repackaged the attitudes that informed the Criminal Tribes Act 1871 by enabling legal authorities to exercise monitoring and control over a racialised population.

Another example of the continuities between past and present can be found in historical laws on slavery, and contemporary laws on citizenship. When judges grappled with the question of slavery in the 1700s and 1800s, they declared that people classed as ‘slaves’ because of their skin colour were to be considered as chattel or property rather than human beings for the purposes of legal action. In other words, a person’s skin colour or perceived race had a bearing on whether they enjoyed legal personhood. Today, as outlined in a 2022 report by the Institute on Race Relations (IRR) titled Citizenship: from right to privilege, race still has a bearing on determinations of legal personhood. The recent case of Shamima Begum illustrates this point. In 2015, aged just 15, Begum travelled to Syria to join ISIS. When she was found in a refugee camp four years later and refused to express regret for her actions, the Home Secretary revoked her citizenship. Under the British Nationality Act 1981 and subsequent legislation, the Home Secretary can strip someone of their British citizenship if they consider such a measure to be ‘conducive to the public good’. The right to citizenship, though, is of fundamental importance because without it, a person cannot exercise their other legal rights in a political community. Hannah Arendt thus described the right to citizenship in 1951 as ‘the right to have rights’, and in recognition of its importance, British law makes it clear that citizenship cannot be revoked if the person concerned would be left stateless. Since Begum’s parents were from Bangladesh, the Home Secretary believed that she could apply for Bangladeshi citizenship. Her case therefore highlighted that people with actual or potential dual citizenship are more vulnerable to citizenship-stripping than those without dual nationality. This means that people racialised as Brown or Black are more susceptible to citizenship-stripping than those racialised as ‘White British’, even if they have led virtually identical lives in Britain, because the former are more likely to have dual citizenship on account of Britain’s colonial history, and thus not be at risk of statelessness. As stated by the IRR, then, the laws on citizenship ‘act as a constant reminder to minority ethnic citizens that they must watch their step, and reinforce racist messages about ‘undeserving’ racialised groups unworthy of being British.’

None of this should be taken to equate the treatment of Begum with the treatment of enslaved persons. And it should also be noted that Begum’s case involved a multitude of factors other than race, such as her young age and her lack of conformity with assumptions about Muslim women, but her case nonetheless illustrates how the concept of race still plays a significant role when determining who enjoys legal personhood, and who does not.

These stories of the continuities between the past and present highlight how law has contributed to the structural nature of racism by embedding racial discrimination into social norms and practices. These stories also show how law has contributed to social constructions of what we mean by ‘race’ and ‘racism’; and that law has played a role in silencing the voices of racialised people. Just as enslaved people were told that enslavement was for their benefit, so the Supreme Court said in the case of Roberts in 2015 that police stop and searches were beneficial for Black communities, despite the calls from Black communities to use a public health approach to tackling knife crime and youth violence rather than a criminal justice approach.

Anti-racist approaches to lawyering

Despite the limits of law, though, racial justice campaigners should not be deterred from making use of the legal system. Instead, an understanding of the continuities between the past and present can be used to facilitate anti-racist approaches to lawyering. In recent years, an increasing number of lawyers and civil society organisations have illustrated the ways in which the limits of law can be pushed and stretched. This year, INQUEST and JUSTICE published a guide on how to raise issues of racism in cases involving deaths in custody. In 2021, Black Protest Legal Support and the Howard League for Penal Reform published a guide for anti-racist lawyering within the criminal justice system. Pioneering lawyers such as Ife Thompson have explained how the idea of racial trauma can and should be invoked when constructing legal arguments. From these sources, and others, we can discern four principles for anti-racist lawyering which are informed by an understanding of law’s historical and contemporary roles in sustaining racial injustices, and by the central tenets of critical race theory. These four principles are: reflection, creativity, collaboration, and accountability.

‘Reflection’ ensures that lawyers constantly reflect on the ways in which they personally and professionally might contribute to the problem of racism, given its structural and endemic nature. ‘Creativity’ is a reminder that conventional legal arguments which reflect colonial logics and attitudes do not have to be adhered to, and that lawyers can break legal norms and processes from the shackles of the past. ‘Collaboration’ urges lawyers to recognise that racism is not a solely legal issue, and that racialised people in contact with the legal system often need holistic care rather than just legal advice. If a child has been discriminated at school, lawyers must collaborate with educational specialists to help that child feel safe in educational establishments, for example. And ‘accountability’ is a reminder that to be truly anti-racist, lawyers must listen to, and be accountable to, the voices of those affected by racism.

While law and legal action will always have its limits, I argue that reflective, creative, collaborative, and accountable approaches to anti-racist lawyering will at least ensure that legal efforts to advance racial justice are cognisant of the role of law in creating problems of racial injustice in the first place. This will hopefully contribute to understandings of race and anti-racism, and foster the sort of cultural changes within the legal sector that are much needed.