Anthony Lester QC (Baron Lester of Herne Hill) died in August 2020. His signal contribution to the development of equality and human rights law has not received the credit it deserves. It was mainly through his initiative in the early 1960s that law was first brought to bear on the growing scourge of racial discrimination in Britain. Later, he played a similarly prominent part in the development of human rights law, appearing as advocate in many human rights cases in the European Court of Human Rights and, following the passing of the Human Rights Act 1998, which he actively promoted, in domestic courts. At a time when these advances are under threat, we must not forget his legacy.
Anthony Lester was instrumental in the introduction of the Race Relations Act 1965. This derived from a campaign to curtail the victimisation of Commonwealth immigrants, mainly from the Caribbean, who were actively encouraged to emigrate to Britain (by government ministers including Enoch Powell) to relieve post-war labour shortages. Having struggled to get here, they were frequently faced with exclusion from housing and employment, and from service in pubs and restaurants. Several attempts by individual MPs to introduce legislation to make racial discrimination a criminal offence were unsuccessful until the new Labour government grasped the nettle after its election in 1964.
Anthony Lester was familiar with anti-discrimination legislation in the US. As one of the founding members of the Campaign Against Racial Discrimination, he persuaded the new Home Secretary Roy Jenkins not to rely on the criminal law. In the US, criminal penalties had been introduced for discrimination after the Civil War in the 1860s. White juries declined to convict white defendants and the law became obsolete. After World War II, a new approach was tried: commissions were established in the more progressive states such as New York and Massachusetts to investigate complaints and seek to agree suitable remedies. Enforcement could be pursued through the civil courts if conciliation failed. Jenkins adopted a version of this model. The Race Relations Act 1965 established the Race Relations Board.
However, the Conservatives opposed the Bill and compromises had to be made. Although the severity of discrimination was greatest in the fields of employment and housing, they were omitted from the new law. Compliance was to be sought by conciliation, with an ultimate power (never in fact exercised) for the Attorney General to seek an injunction in a civil court. A new criminal offence was however created by amending the Public Order Act to include incitement to racial hatred.
I was appointed as the new board’s legal adviser and I soon met Anthony, then in his early days at the Bar. We established a good working relationship which developed after 1968 when the board’s powers were significantly extended. The board now had the power to bring proceedings in the County Court to secure redress on behalf of individuals complaining of discrimination.
During the next decades anti-discrimination law expanded. Pressure to outlaw gender discrimination led to the Sex Discrimination Act 1975 (SDA 1975). Anthony was directly involved in its drafting. He had left the Bar temporarily to work for Roy Jenkins at the Home Office. SDA 1975 strengthened the model adopted for race in 1968, introducing the new concept of indirect discrimination and providing individual complainants with direct access to the court. A new Equal Opportunities Commission, a counterpart to the Race Relations Board, was created but with wider powers, including the freedom to conduct its own formal investigations.
Again with Anthony’s input, Jenkins soon embarked on reforming the Race Relations Act to align its powers to those of SDA 1975—hence the Race Relations Act 1976, which replaced the Race Relations Board and its former non-litigious partner the Community Relations Commission with a new Commission for Racial Equality. Anthony returned to the Bar and our collaboration resumed.
In the following years, the new legal framework became established and people affected by other forms of harmful discrimination were asking why they should not be entitled to the same legal protection as women and ethnic minorities. The Disability Discrimination Act eventually reached the statute book in 1995. It too had its Commission—the Disability Rights Commission. The EU was also becoming active in the field of discrimination and its parliament was issuing directives requiring action by Member States. In 1998, the Human Rights Act, again with the considerable support of Anthony Lester, who by that time had become a Liberal Democrat peer and their spokesman in the House of Lords, had made the rights embodied in the European Convention on Human Rights directly enforceable in UK courts. This gave further strength—and complexity—to anti-discrimination law.
The proliferation of enactments argued for rationalisation. The Equality Acts of 2006 and 2010 combined all the enactments and the three anti-discrimination commissions into a single Equality and Human Rights Commission (EHRC), giving it a responsibility for human rights generally. The range of ‘protected characteristics’ was extended to age, gender re-assignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation.
While the consolidation of the statutory framework promised greater effectiveness, it was clearly seen by the government as a cost-cutting exercise. In 2006, the Commission for Racial Equality alone had a budget of £90m. The current budget of the EHRC is £17.1m.
Cost-cutting has gone too far. Inequality and discrimination remain global problems. Consider ‘Black Lives Matter’ and the ‘Me Too’ movement. The EHRC is not doing enough to enforce the law and its powers need to be strengthened. Clearly, it needs greater funding. These are the conclusions of a recently published report of the Joint Parliamentary Committee on Human Rights: ‘Black People, racism, and human rights’ (4 November 2020). Anthony Lester did not live to see this report, but its conclusions would surely have had his blessing.
Sir Geoffrey Bindman QC, NLJ columnist & senior consultant, Bindmans LLP.
