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Anti-Discrimination Legislation

Anti-Discrimination Legislation

The anti-discrimination legislation of the United Kingdom has a long history. The UK is one of the oldest democracies in Europe, whose legislation practically excludes any form of discrimination and racism. Moreover, the United Kingdom is one of the few countries of the Council of Europe that have acceded to all international agreements aimed at protecting the rights of minorities. At the same time, one must take into account that there is no Constitution in the country and legislation is based on the case law.

Presence of laws that are not only scattered between different types of discrimination (gender, race, skin colour, ethic and national origin, nationality, etc.), but also have a different scope of influence for a number of people has irreversibly established the British anti-discrimination legislation as a highly complex field.

Over one hundred various normative acts prohibiting discrimination are currently in existence in UK. Main legislation aimed at preventing racism and extremism is the Race Relations Act (1976), which prohibits discrimination based on skin colour, race, nationality, ethnic origin (acts of similar nature were previously passed in 1965 and 1968), and the Equality Act (2010) – a joint anti-discrimination law that was designed to harmonize the Equality Act of 2006 and the Equality Act (sexual orientation) of 2007. The latter act is also directed at shielding the population of UK from discrimination based on race, religious beliefs, sexual orientation, etc.

The English Criminal Law also has the so-called Public Order Act (1986), sections 18 and 19 of which outlaw any threatening, humiliating, or offensive statements or actions, which are either knowingly directed towards inciting racial hatred, or could possibly provoke such hatred (hate speech). However, these acts are only enforceable in case the crime in question had both victims and eyewitnesses. Therefore the distribution of leaflets with racist content, does, in fact, fall under the jurisdiction of the act, but the leaflets themselves do not, which means they can still be distributed legally if it is done in secret and with no witnesses.

A similar legislation in Northern Ireland makes it illegal to make threatening, humiliating, or offensive statements that could incite hatred towards a part of the population, or induce fear. Section 5 of the previously mentioned Public Order Act (1986) bans the use or display of any threatening, humiliating, or offensive statements within the hearing or viewing distance of the individuals who could feel “harassed, alarmed, or distressed” by such statements.

According to the same Public Order Act (amended), the law can differentiate between the deliberate crimes aimed to incite racial hatred or contributing to the creation of such hatred (part 3), and actions carried out deliberately to incite hatred based on differences in religious beliefs or sexual orientation (part 3, section A).

In Scotland the Criminal Justice and Licensing (2010) legislation and Criminal Law (prejudice aggravating the crime) (2009) protect the victims of hate crimes through setting a heavier punishment for the crimes committed out of racial or religious hatred (2010 edition). In addition to the ones mentioned above, such reasons for committing a crime as victim’s sexual orientation, transgender identity or invalidity are also considered aggravating (2009 edition).

It is also worth mentioning the Human Rights Act 1998, which came into force in 2000 and brought British the legislation in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.

On June 16th a law banning forced marriage came into force. Cases where one or both spouses have given their consent under physical, psychological, financial, sexual or emotional pressure fall under this category of marriage. It is believed in the Cabinet that the law will help save thousands of people facing such a problem each year. The law is actually aimed at the eradication of this ugly phenomenon in the Muslim community.

The main piece of legislation aimed at prevention of discrimination in Great Britain is the already mentioned Equality Act (2010), which has a complex nature and prohibits discrimination in work relations, education, during the process of providing wares or services, and during the realisation of the freedom of unification.

An essential aspect of the British anti-discriminatory legislation is the use of closed list of possible bases for discrimination, which in the Equality Act (2010) received the name “protected characteristics”. These characteristics are age, invalidity, sex change, marital/civil partnership status, pregnancy and maternity, race, religion and beliefs, gender, and sexual orientation (section 4 of the Act).

Section 49 of the same act made it illegal for the local educational institutions and the administrations of local independent and special schools to create circumstances that would hinder the new students’ application and selection process based on their religious beliefs.

It is also vital to mention the Employment Equality (Religion or Belief) Regulations (2003) which is a plank of United Kingdom labour law that bans employee discrimination based on their religious beliefs. Same rules apply to the equal treatment of employees despite their age (2006).

Great Britain has a number of laws directed at eliminating discrimination and guaranteeing equal rights for the minorities with regards to education. The fundamental legislation in this sphere is the Education Act (1996), which has been amended several times after its release. In Scotland the Education Act (1996) is complemented by such pieces of legislation as the Gaelic Language Act (2005), the Scottish Schools (Parental Involvement) Act (2006), etc.

The British anti-discriminatory legislation is generally compliant with the EU standards. In 2013 Britain introduced new legislation that prohibits posting job advertisements with discriminating requirements like a specific gender, age, ethnic origin, ownership of a private car, or a specific first language.

Nevertheless, there are still complaints about hidden forms of discrimination, such as individuals of Asian or African origin being detained by police more frequently , and discrimination of individuals from Eastern Europe during the employee selection process or when being provided services in financial organisations , etc. The disproportionally high number of deaths of foreign nationals and minorities due to police brutality and use of excessive force during and after apprehension is a big problem.

The human rights activists also blame the government for the existence of institutional racism in the police force, where, according to their opinion, ethnic minorities are not sufficiently represented. For example, London is 40% populated by minorities, of whom only 10% are represented in the police force and mostly in low positions.

Over an eight-year period, from 7983 allegations of racism in the police force only 77 cases were reviewed and only 3 have led to the dismissal of police staff. New figures released by Police Scotland revealed that out of almost 300 complaints about racist behaviour by police officers, only nine in total were upheld over a period of five-and-a-half years. Of 828 cases in England and Wales from 2009 to February this year, 9% ended in resignation, dismissal or retirement. This indicates that the law enforcement is reluctant to engage in cases related to xenophobia.

Some law enforcement actions may be regarded as condoning xenophobia. Some legal measures have a direct impact on minorities in the country. This includes the bans on entry for certain members of minority groups introduced in line with counter terrorism legislation. However, police still needs to obtain a court order to impose such action.

However, in recent years, the country has been tightening immigrant legislation, which, according to a number of experts,is leading to violation of the rights of such social groups as migrants, asylum-seekers, refugees and generally citizens of other countries outside the European Economic Area. The growth of anti-immigrant sentiments among voters, as well as the popularity of Eurosceptics, forces the Conservatives also to move in this direction, which has already led not only to the harsh statements of Prime Minister David Cameron and the Minister vn friction Secretary Theresa May to foreigners, but also to the alarming legislative process.

In July 2015, the Counter-Terrorism And Security Bill came into force, which consists of 7 parts: 1) Temporary travel restrictions; 2) Measures to prevent and investigate terrorism; 3) Data saving; 4) Aviation, shipping and rail transport; 5) Risk of involvement in terrorism; 6) Amendments or in connection with the Anti-Terrorism Act 2000; 7) Miscellaneous. Many of the measures imposed under the law had far-reaching consequences for members of minorities and immigrants within the UK. In particular, the law introduced such measures as a ban on leaving the UK for persons suspected of terrorism or aiding terrorism. At the same time, the police and security services are obliged to obtain prior permission from the court for such actions.

British Institute for Racial Relations cites the experience of the 2000 Counter Terrorism Bill and argues that this will unevenly impact the Muslim community. They consider that P.4 of the new bill, which obliges commanders of air and water vessels, heads of trains, etc., to inform the authorities about suspicious passengers, including their ethnic and religious identity, is discriminatory. Similarly, they characterise P.5 of the Anti-Terror Bill, which imposes the same duties on teachers, doctors and public service employees.

At the same time, it is evident that in light of frequent terror attacks carried out by Islamist extremists, certain security measures are necessary as long as they are carried out fairly and non-discriminatorily.

On April 17, 2016 in the UK the House of Lords voted for the total ban on placing pregnant women in custody in immigration centers. In August of the same year, the Ministry of Internal Affairs of the country simplified the granting of refugee status to families with children under 25 years if their closest relatives had the right to family reunification. And in January 2016, the British government announced that it would offer a safe haven for the undisclosed number of refugee children in addition to the stated goal of hosting 20,000 Syrian refugees. On April 27, 2016, the British court allowed refugees to receive social disability benefits even if they did not reside in the country for more than two years, as required by law. Thus, the problem of refugees with disabilities was solved, which barely made ends meet.

Despite some uncertainty surrounding Britain's exit from the European Union on January 31, 2020, the United Kingdom remains a signatory to the European Charter of Fundamental Rights and has acceded to all international agreements protecting minority rights in Europe. In 2018-22, there were isolated attempts to expand anti-discrimination legislation. For example, on March 8, 2018, the Scottish Parliament passed an Act to improve gender representation on state boards. The law set a goal of having 50 percent of non-executive members on public councils be women in order to reduce gender inequality in public and private sector boards and institutions. However, the law was challenged in the High Court of Session of the Scottish Court of Session by For Women Scotland over the inclusion of trans women in the new quota system.

However, the most remarkable success of 2021 was the passage, after much debate, of the Hate Crime and Public Order Act by the Scottish Parliament, which for the first time in British history introduced liability for the new crime of "incitement to hatred. However, concerns on the part of human rights activists about freedom of speech prevented a move to discuss it at the end of 2020.

The story of the hate speech law developed against the backdrop of intense activity by Sarah Khan, an independent UK government adviser on extremism and head of the Commission on Countering Extremism. On October 7, 2019, she presented her commission's report titled "Combating Hate Extremism." It defined for the first time a new category of extremist behavior beyond terrorism and violent extremism - "hate extremism" (hateful extremism). It is defined as behavior:

  • that may incite hatred, or manifest persistent hatred, or speak ambiguously about violence and articulate moral grounds for violence.
  • that is based on hateful, hostile or racist beliefs directed against an alien group that is perceived as a threat to the well-being, survival or success of an internal group (defined as a victim).
  • which causes or is likely to cause harm to individuals, communities, or society as a whole.

In doing so, Sarah Hahn argued for expanding the concept this way:

  • "Hate extremism threatens our ability to live together. From inciting acts of violence and terrorism to inciting hatred and hostility, often targeting those who are not protected, extremists have a devastating impact on the victims of their hatred, on cohesion in our cities, and undermine the social fabric and democratic norms of our country.
  • The state's ability to counter repeated and persistent perpetrators is inconsistent and often ineffective. When extremists engage in terrorist activities, they are often trapped by tough anti-terrorism laws. But when they incite hatred, exhibit persistent hatred or justify violence against others, they know they are not crossing the threshold of terrorism. As a result, many extremist actors and organizations, whether far-right, Islamist or otherwise, continue to operate with impunity in our country, both online and offline.
  • Extremists seek to restrict the rights and fundamental freedoms of others. They try to bring us closer to the norm and force us to consider their extremist worldview, which demeans our democracy and the values we hold dear. The state has a responsibility to protect these rights and values under the rule of law."

In essence, Sarah Khan was raising the question of extending the concept of "hate crime" beyond acts of violence against specific individuals. In this way, Britain has provided a rationale for why hate speech or incitement to hatred against particular social groups should be treated as hate crimes.

Although a similar law was passed in Scotland, Britain itself is only training the possibility of such innovations in its legislation in 2019-22. For now, the situation is the same as it was 20 years ago. The Public Order Act 1986, the Crime and Disorder Act 1998, and the Criminal Justice Act 2003 contain provisions prohibiting hate crimes. In addition, sections 18 and 19 of section 5 of the Public Order Act state that crimes or written material intended to incite racial hatred, or material capable of inciting racial hatred, are prohibited. Note, however, that these articles apply only if there are victims and witnesses to the crime in question. At present, British law criminalizes a wide range of such crimes, provided that they are violent in nature or cause fear and suffering to a particular individual. Moreover, as in American law, non-violent hate crimes are not codified here as separate offenses, but are merely aggravating circumstances in the commission of ordinary crimes.

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