Justice in a time of racism
In the wake of the summer’s racist riots, it might be hoped that the power of the legal system would be harnessed to tackle racism. But while many people involved in the riots have been convicted of race hate crimes, the legal system has also hindered the struggle for racial justice, argues Bharat Malkani, a reader in law at Cardiff University and author of Racial Justice and the Limits of Law.
It has been two months since racist rioters took to the streets of the UK and vandalised mosques, set fire to hotels housing asylum seekers, attacked police officers and assaulted people of colour. Politicians were quick to denounce the violence and promised that those involved in the rioting would ‘face the full force of the law’.
It might be hoped that the power of the legal system would therefore be harnessed to tackle racism, but while many people involved in the riots have been convicted of race hate crimes, the legal system has also hindered the struggle for racial justice. To understand why, we need to get to grips with the law’s long and sustained historical role in creating and maintaining systemic and structural racism.
‘The use of the legal system to reinforce anti-Black and anti-brown racism has its roots in the colonial era’
In 1530, the Egyptians Act was introduced to regulate the number of Roma people in the country, reflecting a prejudice that they were a threat to the social order. Statutes have continued to be enacted that keep people of Gypsy, Roma and Traveller heritage at the margins of society, such as the Police, Crime, Sentencing and Courts Act 2022. Laws such as this weave discriminatory treatment and outcomes into social systems, contributing to discriminatory treatment in the healthcare system, for example.
The use of the legal system to reinforce anti-Black and anti-brown racism has its roots in the colonial era, with statutes passed in the 1600s that permitted the enslavement of Black Africans in colonial-era America. Throughout the 1700s, the courts in England and Wales struggled with the question of whether slavery was permitted on the shores of Britain.
But even judges who expressed a dislike for slavery nevertheless issued judgments entrenching the belief that white people were biologically and morally superior to Black people and ought to receive preferential treatment. In this sense, the legal system contributed to the development of policies, practices and cultures that enabled discriminatory and harmful treatment of Black British populations in all aspects of life, including education, employment and housing.
From the 1800s through to the mid-1900s, the British legal system was used to keep colonised populations from India to Kenya to Jamaica under control. This mindset – that non-white people were ‘uncivilised’ and needed discipline and control – took root in the UK, too. Immigration laws were passed to limit the arrival of Black and brown people, and the law permitted shop-keepers, landlords and employers to explicitly discriminate against people on the basis of their perceived race. Essentially, the legal system was used to facilitate and perpetuate racism across social systems such as schools, healthcare, housing and the justice system itself, embedding racism into the structures of society.
‘The Race Relations Act 1965 was the first piece of legislation that outlawed racial discrimination’
Things appeared to change in the second half of the 20th century. The Race Relations Act 1965 was the first piece of legislation that outlawed racial discrimination, and its scope has been broadened by several other acts of parliament over the last 60 years, culminating in the Equality Act 2010.
Laws have also been introduced to prohibit acts of racial hatred, most notably in the 1990s after the murder of Stephen Lawrence. It might seem that the legal system is now an ally to the cause of racial justice, as it explicitly denounces racial prejudice and discrimination. Indeed, some of the remarks made by judges when sentencing people for their role in the August riots appear to advance the cause of racial justice.
Consider, for example, the words of the judge sentencing David Wilkinson to six years imprisonment for his role in ‘12 hours of racist, hate-fuelled mob violence’. Another judge condemned Tyler Kay for his ‘utterly repulsive, racist and shocking posts that have no place in civilised society’ when sentencing him to just over three years imprisonment for inciting racial hatred online.
Yet these kinds of statements mask the legal system’s continuing role in entrenching racism in society. Comments such as ‘mob violence’ and ‘no place in civilised society’ reinforce the view that individuals who say or do racist things are acting outside the normal course of society. But the actions and words of the rioters are better viewed as manifestations of a deeper and more structural type of racism – the type the legal system has historically woven into the fabric of society. If we don’t acknowledge this, we implicitly sustain structural racism.
To compound this, lawyers and judges are committed to the principles of neutrality and impartiality, stating that they cannot take a side between racism and anti-racism. As an example, consider the words of Judge Francis Laird KC, who sentenced Noman Ahmed to 14 months in prison for throwing a punch during the riots. He acknowledged Ahmed was protecting a local mosque and defending people who had suffered ‘racial slurs and threats’, but said those motivations did ‘not mitigate’ his culpability. While victims of racism should not take the law into their own hands, comments such as these suggest the legal system will not only sustain structural racism, but will also still be used to subjugate victims of racism.
‘There is an opportunity for the new government’
What, then, is needed to ensure that the legal system is no longer used to entrench structural racism? First, legislators need to make the structural and institutional nature of racism clear in the language of any statute that is designed to address racism. This will go some way to ensuring incidences of racism are no longer characterised as incidental to the normal course of society.
Second, when deciding relevant cases, judges ought to situate the facts of their present case within the broader topic of structural racism. Those sentencing the rioters, for example, should not characterise them as ‘mobs’ and ‘thugs’ who do not reflect society’s values, but should instead explain how their actions are interlinked with the broader problem of structural racism. Anti-racist campaigners and lawyers should therefore continue to educate the broader public on the nature of structural racism, and the government ought to heed the recommendations of the Alliance for Racial Justice, which recently set out a ‘better way to tackle institutional racism’.
As the dust settles on the riots, there is an opportunity for the new government to put its promise of tackling racial injustices into action.
Bharat Malkani is a reader in the law department at Cardiff University, where he teaches and researches in the fields of race and law, and miscarriages of justice. His latest book is Racial Justice and the Limits of Law.
The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect those of the Runnymede Trust.
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