Dorset Race Equality Council

Direct Racial Discrimination
Occurs when a person is treated less favourably than someone else on racial grounds. What this means in practice is that one must show that the discrimination is by its nature racial and that the treatment meted out to the person is less favorable than it would be in the case of another person from a different racial group ("the comparator") in the same or similar circumstances.

Examples
1) A person of African or Caribbean heritage is refused entry to a club after being told that it is already full. Moments later a number of white men and women are admitted.
2) A white man is refused entry to a club after the doorman realises that he is accompanied by a black woman. This is an example of direct racial discrimination on the grounds of someone else's 'colour', race or ethnicity, etc.

In principle there is no defense in the case of direct racial discrimination. However there are exemptions to the Race Relations Act 1976 and its Amendment (2000) and some areas lie outside the scope of the Act. In other words there is such a thing as lawful direct racial discrimination (but generally that is a 'privilege' reserved only for government).

Indirect racial discrimination

	This type of discrimination can be on the grounds of either:
	1) Colour or nationality (Race Relations Act 1976) This occurs when an apparently non-discriminatory requirement or condition which applies equally to everyone: can only be met by a considerably smaller proportion of people from a particular racial group, which is to the detriment of a person from that group because he or she cannot meet it and the requirement. Can be justified if the grounds for 'requirement or condition' can be shown to be non-racial. Example: a rule that employees or pupils must not wear headgear could exclude Sikh men and boys who wear a turban, or Jewish men or boys who wear a yarmulke, in accordance with practice within their racial group.

	2) Race, ethnic or national origin (Race Relations Act (Amendment) Regulations 2003) This occurs when a provision, criterion or practice which, on the face of it, has nothing to do with race and is applied equally to everyone: puts or would put people of the same race or ethnic or national origins at a particular disadvantage when compared with others and puts a person of that race or ethnic or national origin at that disadvantage. Can be justified if shown to be a proportionate means of achieving a legitimate aim. Example: An employer requires higher English language standards than are needed for the safe and effective performance of a job.

	Definition '2' is more recent and being more broad in general terms makes the establishment of indirect racial discrimination more easy than was formerly the case.

The article "Amplifying Prejudice?" sets out the allegation that CRB/ISA disclosures might result in racial discrimination. This is because these disclosures rely on data stored on the PNC and originating within the CJS. It is known that BME individuals are disproportionately represented at all levels of the CJS. What is not known is the reason for the disproportionality. This renders the data dangerously unreliable. Here is an example of how indirect racial discrimination might occur.

Job applicant "A" of African/Caribbean heritage is prevented from taking up a post (professional or voluntary) due to his inability to satisfy an interviewing panel that he is no longer at risk of re-offending. He was called for the interview based on the CRB/ISA's disclosure of data held on the PNC. NB: In real life what one panel decides on such occasions might be reversed by a different one, e.g. see: Barred! This is an external website. Please use your back button to return. If this link breaks click here to download Barred! in Acrobat format.

The CRB/ISA disclosure service is apparently neutral with respect to race/ethnicity and is applied to everyone in the same circumstance as "A".

It is compulsory for "A" to meet the requirement/condition of satisfying the interviewing panel that he is not at risk of re-offending if he is to take up the post on offer.

Due to the disproportionate representation of BME communities at all levels of the CJS a greater proportion of persons from the same community as "A" in the same circumstance would suffer the same disadvantage as "A" when compared with persons from the White community. NB: The disadvantages are not just confined to employment but are the same as those faced by any UK ex-offender, e.g. with regard to obtaining insurance, securing accommodation, exclusion from various professional and voluntary roles and so on for life.

Indirect racial discrimination can be justified if it can be shown to be a proportionate means of achieving a legitimate aim. Is this the case with CRB/ISA disclosures in their present form? It is not suggested that the protection of children and vulnerable adults from abuse is not a legitimate aim. However, there would appear to be an issue regarding proportionality.

For example, is the disclosure of non-conviction data (i.e. cautions, reprimands or warnings) or conviction data or both, of a nature not relevant to the protection of children, vulnerable adults or both, really proportionate to the actual general risk of abuse to children or vulnerable adults?

Is not the foregoing an example of the proverbial large sledgehammer to crack a nut? Especially so when one considers that the most common potential abusers remain largely untouched by the CRB/ISA disclosure service. For example, in the case of children, according to the National Society for the Prevention of Cruelty to Children in 2007, the most common sexual abusers of children were brothers within the family and boyfriends or girlfriends outside the family: Child sexual abuse Key child protection statistics . This is an external website. Please use your back button to return.”

The above is an issue that the New Labour government ran up against – where do you stop? What relationships can you trust? Should we require CRB disclosures of grandfathers or uncles or any other male relative? CRB disclosures for the potential male partners of single mothers. I remember the outrage when the last government suggested CRB disclosures for people running their friends' children to sports events, etc. However, this is the logical reality of a system that sets out to control every relationship of trust between an adult and children or vulnerable adults. Here is a conundrum I have never heard satisfactorily answered. You are faced by a man who on the basis of a CRB disclosure is banned from working with children. However, he has several children of his own living with him. What would you recommend we do with him? Remove him from the home? Remove his children from the home along with their mother? Have him supervised when visiting the children? Where do you stop? Where is the proportionality in such a system with respect to the actual risk?

Finally, what of rehabilitated adult ex-offenders with criminal records dating back more than 20 years or 30 years or 40 years, etc? People who might have rendered a valuable service to society over many years without any evidence of being a risk to anyone. Where is the justice or proportionality in persecuting such people by disclosing their past mistakes, for which remember, they have already served an appropriate sentence? Remember that the current “good practice” is to repeat the disclosure every three years. Will such a policy help or hinder the rehabilitation of offenders?

I am not a lawyer and I wish to acknowledge my reliance of the excellent on-line resource provided by the Equality and Human Rights Commission here and mirrored by the Cheshire Halton & Warrington Race Equality Centre here.

Thanks to the foregoing I now know that certain public authorities are exempted from the Race Relations Act as follows.

"The Act does not apply to: