Racial discrimination – Seán Crossan's Scots Law

No problem here?

In the second of two articles for Black History Month, my friend and colleague, Tony Adams reviews No Problem Here: Understanding Racism in Scotland (Luath, 2018) Neil Davidson, Minna Liinpaa, Maureen McBride and Satnam Virdee (eds.). This article originally appeared in The Scottish Left Review (Issue 106 July/August 2018).

Racism in Scotland is often relegated to the back burner. Even when the issue of racism is broached by anti-racists campaigners the stock responses they are met with is that ‘Things aren’t as bad as all that, you exaggerate; you’re indulging in special pleading or you must be paranoid’. Little wonder there is this widely held view both by politicians and academics that ‘there is no problem here’. Ethnic minorities are congratulated for integrating better and there is a welcoming attitude towards refugees and migrants.

Meanwhile research into the historical record and contemporary reality tells a different story. The racialized outsider faces discrimination in education, jobs, housing and at the hands of the police and criminal justice system. Racism in Scotland is, therefore, not a side issue and it is not peripheral either. It is central to the way things work. The question of racism in Scotland and the interplay, of race class, nationalism and other intersecting issues are very focal to this edited book. It brings together the views of academics, activists and anti-racism campaigners who argue that it is vital that the issue of racism be brought into public discourse.

In contrast to England, there has been relatively little public discussion about the historical or contemporaneous structuring power of racism in Scotland. ‘We wish to dig beneath the ‘race
blind’ narrative that Scotland and its elites have crafted for many years, to perhaps unsettle them a little, so that we might begin to open up space for writing a historical sociology of racism in Scotland’ the book says. Its contributors ‘contend that the narrative of an absent racism in Scottish history and that the Scots are more egalitarian, more likely to place an emphasis on collectivism over individualism and on government intervention over self-reliance reinforces the myth that Scotland does not have a serious racism problem’. Instrumental to the consolidation of this powerful myth that ‘there is no problem here’ is that memorable Scottish phrase, ‘We’re a’ Jock Tamsin’s bairns’.

Such myth making has the effect of deflecting attention away from the disproportionate role that Scots actually played in the British Empire. It occludes any discussion of racisms in the country. Empire is central to the union. TheAct of Union, 1707, opened up English colonial markets to Scottish merchants and made it possible for Scots to play
a role in the construction of the British Empire. But when we think of the British Empire our minds often drift to England rather than to Scotland. Yet Scotland was complicit in the slave trade and had colonies predating the joining of the union. It is significant to note here that slavery or the slave mode of production was central to early capital and racism became its justification. Thus racism has evolved entwined with capitalism over the last three centuries.

There is a level of amnesia that clouds the history of empire. Glasgow was the second city of the empire and, by the end of the Victorian era, Scots firms had attained a controlling position in key sectors of the economy of British India. Rather than sanitizing its past in order to re-imagine a post-union future, perhaps we need to look back at Scotland’s imperial history and connect it to a broader understanding of the British empire and Britain’s colonial past.

This perception that Scotland has less of a problem with racism than other areas of the UK is not borne out by the statistics either. In 2013-14 there were 4,807 racist incidents recorded by police
in Scotland, the equivalent of 92 incidents a week without accounting for the many cases that go unreported. And lest we forget that there has been racist murders here many of which have still not been formally acknowledge as racist – Nuer Mohamed, Hector Smith, Shamsie Din Mohamed, Imran Khan, Sanjit Singh Choker and Sheku Bayoh to name a few. The growth of far right parties and the rise of Islamophobia across Europe and the US has to be challenged and driven back. Scotland is not immune from this.

The book explores the different modalities of racism in Scotland and the ways in which cultural racism has become central to the experiences of particular social groups. It also seeks
to locate the contemporary debates on racialization and racism in their appropriate context in Scottish history. As the late historian E H Carr once put it: ‘There is no more significant pointer to the character of a society than the kind of history it writes or fails to write’. No Problem Here is a welcomed and important starting contribution that will invigorate the debate of what kind of Scotland we live in and what kind of Scotland we want it to be.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal.

Black sailors and the battle of George Square

To mark Black History Month, my friend and colleague, Tony Adams recalls a forgotten chapter of the events around ‘Red Clydeside’ in 1919. This article was originally published in the Scottish Left Review.

The year, 1919, in Britain represents a high point in working class struggle and one un-matched since in its breadth and scale. Over 34m working days were not worked due to strikes compared to an average of 4.5m for each of the preceding four years. Two thousand soldiers, ordered to embark for France, instead mutinied and formed a Soldiers’ Union. Even the police force struck and demanded the right to unionise. Britain, it is said, was on the brink of a revolution. On 31 January that year a violent confrontation took place in Glasgow between the police and radical striking workers centred in and around the area around George Square. The workers were striking to demand a reduction of the working week from 54 hours to a 40 hour working week.

At a massive union rally in George Square on the day of the protest, the red flag was raised above 60,000 striking shipbuilding and engineering workers. Newspapers of the next day dubbed the demonstration which saw pitched battles between the police and strikers as ‘Black Friday’ or ‘Bloody Friday’. What began as a protest soon became a riot, with fighting across the city continuing throughout the night and 53 people were recorded injured. This dramatic incident and the leaders of the strike have been mythologised under the banner of ‘Red Clydeside’.

Meanwhile, a lesser known harbour race riot on Thursday 23, January 1919 in which black British colonial sailors were branded as unfair economic competitors by the national seamen’s unions and their local delegates, has been overlooked both in the personal and historical accounts of the general strike until more recently. The riot began in the yard of the mercantile marine office in James Watt Street where sailors gathered for their chance to be signed on to a ship. While waiting to see if they would be hired, competing groups of black and white sailors jostled and shouted insults at each other. This baiting descended into a pitched battle which spilled out of the yard onto the street. More than thirty black sailors fled the sailors’ yard pursued by a large crowd of white sailors. White locals joined the crowd which grew to several hundred strong. The rioters used guns, knives, batons and makeshift weapons including stones and bricks picked from the street. On being chased out of the hiring yard, the group of black sailors initially ran towards the nearby Glasgow sailor’s home on the corner of James Watt Street and Broomielaw Street. The white crowd smashed the windows of the sailor’s home and then invaded it. The two or three beat police officers in the harbour area were overwhelmed and an additional force of 50 police officers was called in. The large police force cleared the two set of rioters from the sailors home.

Though the staging of a general strike in Glasgow, its collapse following ‘Bloody Friday’ and the presence of tanks in the city centre the next day were far more eye-catching than the riot in the harbour a week earlier, the two events were explicitly inter-connected through the activities of the members of the leadership of the 40-hours strike movement. Emanuel Shinwell, leader of the Glasgow branch of the Seafarer’s was in addition, president of the Glasgow trades and labour council and chairman of the workers strike committee. Although a moderate, he advocated direct action in the most inflammatory terms in the days leading up to both the harbour riot and the mass protest of the 40-hours campaign. He and other strike leaders, such as William Gallacher, sought to encourage unskilled workers – including seamen – to take part in the sort of strike action that had been the province of the skilled workforce on wartime Clydeside. The two episodes ought to be viewed together as the harbour riot and the George Square demonstration occurred within a few days of each other. This proximity was much more than coincidental especially as the riot in Glasgow seaport, was soon followed by similar riots in South Shields, Salford, London, Hull, Liverpool, Newport, Cardiff and Barry.

It is important to note that the Glasgow harbour riot was the first instance of a spate of rioting focussed upon black residents in British ports which reached its height in June of that year. It was also part of the wider picture of industrial strife which has been simmering below the surface on Clydeside and other heavily industrialised regions throughout the war years and into 1919.

During these riots, crowds of white working class people targeted black workers, their families, black owned businesses and property. One of the chief sources of the violent confrontation in the run- down port areas was the ‘colour’ bar implemented by the sailors’ unions campaigning to keep black, Arab and Asian sailors off British ships in a time of increasing job competition. The imposition of a ‘colour bar’ on black workers at Glasgow and elsewhere around Britain’s seaports to protect white British sailors’ jobs illustrates the disregard for sections of the working class among many of those who considered themselves protectors of the organised workforce. Historically expressions of racist hostility have been tied to questions of employment. Hostility towards groups of fellow workers among trade unionists was nothing new. The opposition of white union members to the employment (in some cases) of cheaper overseas merchant sailors, violently demonstrated at Glasgow harbour, bears comparison to the wartime industrial action on Clydeside which aimed at preventing the ‘dilution’ of skilled with unskilled job losses and the permanent undercutting of ‘engineers’ wages.

The sea port riots of 1919 in which white crowds attacked black workers, their families and communities, have long presented a painful conundrum as they prefigure a century of conflict and harassment of people of colour in Britain. The causes of the riots are located in the interplay between on-going strikes, riots and other collective violence elsewhere in Britain and the Atlantic basin as well as the local context and meanings (including housing shortages and unemployment). In this light, the British riots appear less an isolated eruption ‘proving’ British racism, as they have often been portrayed. They were part of a broader political movement of resistance against post-war betrayals. This made the role of service and recently demobilised men a significant factor in the riots, one which was commented upon in many local press accounts of the violence. It is also clear that the specific grievances of the white sailors were not the only issues in the riots. The sense that the great sacrifices of the war years had been futile was being experienced at a national level as post-war shortages in housing and increased competition in the job market were the first results of mass demobilisation. Wider frustrations were being focused on the black community in Britain as a means of release. That the authorities in part recognised this is often apparent from the light sentences meted out to the white rioters in various centres around the country. However, there is also an element of racial antipathy revealed by the official response to the riots.

The fear of violence in the immediate post-war period became a worldwide phenomenon, and not without reason. The level of global unrest in the late 1918 and 1919 is also worth considering as it provides a wider context in which the race riots in Britain may be discussed. The Bolshevik revolution in Russia in 1918 provided governments worldwide with a spectre of the overthrow of the state in a situation of crisis. The attempted revolts of the Spartakist movement in Berlin, the establishments of soviets in Bavaria, Hungary and Czechoslovakia and the socialist revolt in Austria fuelled the worldwide fear of Bolshevism. It was not merely in the ‘defeated’ nations that unrest occurred for the politicising effect of war service and the strains placed on every day society by the war resulted in riots in the United States, the Caribbean, Africa as well as in Britain. As one of Scotland’s leading expert calls for a permanent fixture to remember the demonstration which took place on 31 January 1919, the black sailors of the Glasgow harbour riots deserve a place to be commemorated too because there is a single working class in Britain by historic right and present participation.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal. Jacqueline Jenkinson’s ‘Black 1919 Riots, Racism and Resistance in Imperial Britain’ (Liverpool University Press, 2009) is the best available study of the issues.

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https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

You’re Black; you’re banned!

In June 2019, I wrote an article which has become one of my most viewed Blogs – ‘Is it cos I is Black?’ The title was taken from Sacha Baron Cohen’s comic creation Ali G whose catchphrase it is. In that article, there was nothing actually that funny. My purpose was to highlight the shockingly high levels of racism that people of Afro-Caribbean origin still continue to experience in contemporary Britain – in spite of all the legislation (such as the Equality Act 2010) which theoretically puts people on an equal footing.

Race is a protected characteristic in terms of Sections 4 and 9 of the Equality Act 2010 and it is unlawful if a person is subjected to prohibited conduct e.g. direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

It will, therefore, be unlawful in the UK to subject a person to a detriment because of race in relation to employment, education, training and the provision of services generally.

Bearing all of this mind, I was startled to read about a story from Guangzhou, China where a McDonald’s outlet has been severely criticised due to its staff refusing entry to African Americans. No reason has been given for this behaviour.

McDonald’s is understandably very sensitive about this issue and has apologised for the behaviour of its staff.

Had this incident occurred in the UK, you would be correct to conclude that legal action in terms of Sections 9 and 13 of the Equality Act 2010 would have been threatened. To anyone who doubts that discrimination against Black people is a thing of the past, this story will serve as a timely wake up call. Who would have thought that such things would still be going on in 2020?

A link to the story on the Sky News website can be found below:

Outrage after black people banned from McDonald’s branch in China

http://news.sky.com/story/outrage-after-black-people-banned-from-mcdonalds-branch-in-china-11973200

The story from China reminded me of an incident in the American city of Philadelphia which involved racism against two African American men who were arrested in a Starbucks outlet. The men were waiting for a friend to join them in the store when a manager called the Police because they had not purchased anything. They were taken from the store in handcuffs by the Police. The incident went viral and The ensuing publicity did Starbucks no favours at all.

A link to this story as reported by The Independent can be found below:

https://www.independent.co.uk/news/world/americas/black-men-starbucks-philadelphia-settlement-1-dollar-entrepreneurship-fund-a8333526.html

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Copyright Seán J Crossan, 15 April 2020

No Blacks, No dogs, No Irish!

The title of this Blog refers to the not so distant past when discrimination was an accepted feature of life in the United Kingdom. In the 1950s and 1960s, these types of signs were routinely displayed in the windows of hotels, boarding houses and guest houses in the United Kingdom. They were blatantly racist, but completely legal.

It wasn’t just an unwillingness by White British landlords to rent rooms or properties to Afro-Caribbean and Asian families especially, ethnic minorities were often actively discouraged from purchasing properties in White neighbourhoods.

In 1968, Mahesh Upadhyaya, a young Asian immigrant to the UK, mounted legal challenge in respect of a refusal by a white British builder to sell him a house. It was the first time that anyone could do this. Mr Upadhyaya was able to do this because the Race Relations Act 1968 had just come into force. Although Mr Upadhyaya’s claim was ultimately dismissed on a technicality, the action generated a lot of publicity and greater awareness of the existence of anti-discrimination legislation amongst the British public.

A link can be found below which provides more information about Mr Upadhyaya’s story:

https://eachother.org.uk/racism-1960s-britain/

Even in the 1970s, you could still have a popular television sitcom called Love Thy Neighbour which dealt with the trials and tribulations of an Afro-Caribbean family moving into a white neighbourhood. If you watch it today, you can only cringe at the racist attitudes and name calling on display (see below) – you have been warned!:

https://youtu.be/mGesyvKfAOA

This was the post-War period when Britain was suffering from acute shortages of labour and the solution adopted by successive Governments was to encourage immigration from former colonies such as Bangladesh, India, Pakistan, Sri Lanka and the British Caribbean islands.

Today, with the Equality Act 2010 firmly in place, it’s unthinkable that this type of blatant discrimination in housing could or would still take place. From time to time, however, stories are reported in the British media which highlight blatant racial discrimination in housing, but most people would now recognise that this type of behaviour is completely unlawful (see link below):

https://www.theguardian.com/money/2017/nov/08/landlord-ban-coloured-tenants-unlawful-court-rules-equality-watchdog

‘No DSS’ tenants

With this historical background, it was with some interest that I read recently about a number of legal actions (which had resulted in out of court settlements) where landlords had refused to let properties to certain individuals. These refusals had nothing to do with the racial backgrounds of prospective tenants, but the cases usefully demonstrate that letting properties can still be something of a legal minefield for landlords.

If the prohibition regarding Asian, Black and Irish people was an example of direct race discrimination (now in terms of Sections 9 and 13 of the Equality Act 2010), what about a prohibition which states ‘No DSS’ tenants? This term refers to individuals who are in receipt of State benefits such as Universal Credit whereby their rent is effectively paid by the Government.

At first you might be forgiven for thinking how such a prohibition could infringe equality laws, but dig a little deeper and think things over. The prohibition is a provision, criterion or practice (PCP) imposed by the landlord. Admittedly, people receiving State benefits are a hugely varied group: they will encompass men and women; White and Black and Minority Ethnic individuals; disabled and non-disabled people; heterosexual and LGBTI individuals; and people with religious/ philosophical beliefs and those with none.

This is to miss the point: could such a PCP be an example of indirect discrimination by reason of a protected characteristic in terms of Section 19 of the Equality Act 2010?

The answer seems to be yes: it would seem that more women than men are adversely affected by the prohibition ‘No DSS’ tenants. In other words, the prohibition is an example of indirect sex discrimination. Indirect discrimination can be understood in basic terms as hidden barriers which lead to unlawful, less favourable treatment.

Landlords may argue that they are not intentionally discriminating against women, but this is precisely the effect of their unwillingness to let properties to people receiving State benefits.

In 2017, the UK Supreme Court clarified the meaning of indirect discrimination in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27:

There is no obligation for a complainant with the protected characteristic to explain why the PCP puts her at a disadvantage when compared to other groups;
Indirect discrimination does not (unlike direct discrimination) have to demonstrate necessarily a causal link between the less favourable treatment and the protected characteristic. All that is required is a causal link between the PCP and the disadvantage suffered by the complainant and her group.
Statistical evidence can be used to demonstrate a disadvantage suffered by a group, but a statistical correlation is not of itself enough to establish a causal link between the PCP and the disadvantage suffered;
The PCP may not necessarily be unlawful of itself, but it and the disadvantage suffered must be ‘but for’ causes of the disadvantage. Put simply, if the PCP was not there, the complainant and her group would not suffer the detriment.
The PCP itself does not have to disadvantage every member of the complainant’s group e.g. some women may be able to comply with it, but , critically, more women than men cannot.
The pool of individuals to be scrutinised to assess the impact of the disadvantage should include everyone to which the PCP applies e.g. all those receiving State benefits whether they are negatively affected or not.

A link to the Supreme Court’s judgement can be found below:

https://www.supremecourt.uk/cases/docs/uksc-2015-0161-judgment.pdf

Conclusion

It looks as if the phrase ‘No DSS’ may be consigned to the history books along with the more notorious example of ‘No Blacks, No dogs, No Irish’. Speaking of dogs: a general ban on these animals might constitute another example of indirect discrimination as individuals who are visually impaired (a disability) may be less likely to be able to comply as they rely on their guide dogs.

Links to stories about the legal challenges to the PCP of ‘No DSS’ tenants can be found below on the BBC News App:

Landlords who say ‘no DSS’ breaking equality laws

“No DSS” landlords who turn down housing benefit claimants risk breaching equality laws.

Legal victories over ‘No DSS’ letting agents

Two single mothers win out-of-court settlements against letting agents refusing benefit claimants.

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Bad hair day

It never ceases to amaze me that employers and service providers fall foul of arbitrary codes or policies which they impose on employees and service users. Regular readers of this Blog will be aware of previous articles covering discrimination or less favourable treatment which arises because employers or service providers issue generalised guidelines which discriminate against individuals because they happen to have certain hairstyles or wear beards or jewellery.

It is this lack of awareness that often leads to legal action in terms of the Equality Act 2010. By imposing a policy, criterion or practice (PCP) across the board, employers and other organisations could be setting themselves up for a fall specifically in relation to Section 19 of the Equality Act 2010. This part of the Act makes indirect discrimination unlawful i.e. it is an example of prohibited conduct by reason of a person or a group possessing a protected characteristic such as race or religion (Sections 9 and 10 respectively)

Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals. So, you would think by now that employers and other organisations would have learned the lesson by now – apparently not as we shall see shortly.

In short order, such bans or generalised restrictions may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

Over the years, groups such as Jews, Muslims, Orthodox Christians, Sikhs and Rastafarians have brought successful legal actions for indirect discrimination on grounds of race and/or religion (see Mandla v Dowell–Lee [1982] UKHL 7). Being Jewish or Sikh can be both a religious and a racial identity.

Taking all of the above on board, I was really interested to read a story in The Independent this weekend which highlighted the problems of schools imposing dress codes on pupils. I thought: haven’t we been here before and why does no one seem to learn?

The story in question involves Ruby Williams who was “repeatedly sent home from Urswick School in Hackney, East London because she had Afro hair”. The school seems to have reacted with gross insensitivity to the youngster by informing her that her hairstyle was a breach of school uniform policy and that it could “block other pupils from seeing the whiteboard”.

Ruby and her family took legal action against the school (with the support of the Equality and Human Rights Commission) and she has since been awarded an out of court settlement of £8,500. The settlement figure clearly reflects the distress which she has suffered and the fact that all this trouble took place when she was studying for her GCSE exams (remember the Vento Guidelines anyone?). Ruby’s father is a Rastafarian and he has often stressed to his daughter the cultural, racial and religious significance of Afro hairstyles.

Apart from indirect discrimination which the school’s policy has caused to Ruby Williams, she may well also have had a claim in terms of Section 13 (direct discrimination) and Section 26 (harassment) of the Equality Act 2010 for being singled out in this way by the school authorities.

Perhaps the staff and Governors of the school might find it appropriate to undertake an equality awareness course at the next in-service day?

It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

A link to the story on The Independent’s website can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.080220/data/9323781/index.html

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