2021iv5, Monday: Deliberately rigged?

Short thought: In re the UK Government’s Commission on Race and Ethnic Disparities (or CRED, to give it its backronym): I haven’t read the whole report, so I’m not going to take a view on it as a whole. But as short takes on the bits I have read:

1. At least some of the recommendations aren’t bad at all. (Improve transparency on how algorithms affect non-white people? Definitely. Require de-escalation training for all police officers? Should’ve happened years ago.)
2. Some of the others (the curriculum looking at the upsides of slavery? Please), and the foreword - written by the Commission’s chair, Dr Tony Sewell - are tendentious at best, and give at least the appearance of being thoroughly intellectually dishonest.

I’m going to cherry-pick one example from the foreword, because it’s particularly egregious and serves - unless it’s wholly unrepresentative of the rest of the report - to undermine the integrity of the whole thing.

Dr Sewell writes:

Put simply we no longer see a Britain where the system is deliberately rigged against ethnic minorities. The impediments and disparities do exist, they are varied, and ironically very few of them are directly to do with racism. Too often ‘racism’ is the catch-all explanation, and can be simply implicitly accepted rather than explicitly examined.

The evidence shows that geography, family influence, socio-economic background, culture and religion have more significant impact on life chances than the existence of racism. That said, we take the reality of racism seriously and we do not deny that it is a real force in the UK.

The Commission was keen to gain a more forensic and rigorous understanding of underlying causes of disparities. However, we have argued for the use of the term ‘institutional racism’ to be applied only when deep-seated racism can be proven on a systemic level and not be used as a general catch-all phrase for any microaggression, witting or unwitting.

Look at two key phrases: “deliberately rigged”. “Deep-seated racism proven on a systemic level”.

And contrast it with the definition of institutional racism used in the Macpherson Report into the murder of Stephen Lawrence, published more than 20 years ago:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. (para 6.34)

Dr Sewell, deliberately or negligently, throws this definition out of the window. It’s a good thing that almost no organisation is prone to being “deliberately rigged against ethnic minorities”. But to narrow the problem to solely that, and declare victory, is to describe night as day.

Just as bad is the idea that institutional racism only exists when “deep-seated racism can be proven on a systemic level”. Let’s leave aside the casual, if not malicious, straw-manning of implying that anything else amounts to a trivialising of the term, and look at how the law deals with discrimination - on race and ethnicity grounds as in other things.

Of particular importance here is s19 of the Equality Act 2010, which deals with indirect discrimination. This is where a “provision, criterion or practice” (“PCP”, as we in the trade call it - often a policy, whether formal or informal) is applied to everyone, but has a particularly detrimental effect on people with the same protected characteristic as the claimant - that effect extending to the claimant herself. The classic example: a height requirement for a job, if it didn’t have a good reason for existing, would discriminate against women and some ethnicities, simply because they’re on average shorter than men (on the one hand) and than other ethnicities (on the other).

There’s no “deliberate rigging” here. The PCP might be applied in good faith. But it’s still discriminatory. And if one PCP, or a clutch of them, has the effect of systematically disadvantaging non-white people - well, how is that not institutional racism at work?

As for the proof point: it’s good law, and rightly so, that the claimant doesn’t have to show the mechanism. As the Supreme Court held in Essop v Home Office in 2017, if someone can show they’re the subject of a PCP and that PCP has caused them to be treated less favourably than someone else, they don’t need to prove exactly how the one leads to the other. Put differently: they don’t need to prove “deep-seated racism on a systemic level”. Frankly, they almost never could. If that were the standard, no-one would ever win an indirect discrimination case. The more so because the courts are well aware that discrimination is rarely overt, or obvious, or amenable to direct proof. Instead, as explained by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite, the norm - not the exception - is to look at what facts are established, and then see whether discrimination can be inferred from them.

In the name of fairness, I must make two big caveats here.

Firstly, there’s a difference between institutional racism in the abstract, and the workings of indirect discrimination against individuals. Obviously there is, and I’m not seeking improperly to conflate the two. But it’s both fair and proper, I think, to look at the Sewell Report in the context of how the law defines discrimination - and, of course, against the backdrop of the Macpherson Report - and interrogate its implications. They’re not good.

Secondly, and I must make this clear: I have no reason to believe Dr Sewell or the Commission would wish the Equality Act (whether s19 or any other element of it) to be undermined. That’s not what I’m suggesting. Not for a second.

But to draw a parallel with harassment, as defined in s26 of the Act: it’s not just a behaviour’s purpose which is important, but its effect. Even assuming good faith on CRED’s part - and, while saying nothing about the Commission’s motives, I have to admit I find it hard in the light of many ministers’ public pronouncements to assume any such good faith on the part of those who commissioned them - maturity means you own the outcome of your actions, even if they’re not what you intended.

Dr Sewell’s foreword may not set out to undermine protection against discrimination. I’m sure he wouldn’t intend to do so. But it may have that effect.

There’s another side to this, one which comes from an advocate’s point of view.

We barristers spend a lot of time arguing over expert evidence. Experts, even when briefed by one side or the other, are meant to serve the court, not the person who pays their bill. It was beautifully put by Thorpe LJ in Vernon v Bosley:

The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.

Unsurprisingly, given that any situation requiring expert evidence is likely to be far from clear-cut, each side’s expert report will likely favour its own position – while (if it’s any good) making clear that there are a range of other views, albeit less reliable than the writer’s.

However, just once in a while you come across an expert report in which it’s crystal clear that the writer has started from the desired conclusion and argued backwards, cherry-picking or at the very least selectively weighting the evidence to ensure they end up where they want. These are the reports any opposing counsel loves: they offer the rare opportunity not just to interrogate the findings, but to undermine the credibility of the whole report such that the judge may treat its contents with disdain.

As I said at the start: I haven’t had a chance to read the whole report. So it may well be that the rest of it is far more nuanced and thought-through than the foreword.

But if this was the executive summary of the opposition’s expert report which landed on my desk? I’d be dancing for joy. Open goal time.