Sunday 4 April 2010

Can we discriminate about discrimination?

Shadow Home Secretary Chris Grayling has created controversy with The Observer's revelation of a daft and apparently inadvertent pre-election intervention, in which he has been captured on tape (semi-privately) expressing views to a right-of-centre think-tank at odds with his public vote on anti-discrimination laws and gay rights.

Grayling says:

I personally always took the view that, if you look at the case of should a Christian hotel owner have the right to exclude a gay couple from a hotel, I took the view that if it's a question of somebody who's doing a B&B in their own home, that individual should have the right to decide who does and who doesn't come into their own home.

His fellow Conservative Iain Dale puts the reasoned case against allowing some discrimination in the provision of goods and services well. Christians should have equal rights not to be discriminated against, along with members of any faith group, but demanding a faith-based right to discriminate is likely to prove incompatible with equality before the law.

And Grayling's comments are not going to make any substantive difference, because we now have a broad and pretty settled consensus against the type of discrimination he seems to favour. Indeed that can be seen in how Grayling's comments, again perhaps unconsciously, directly echo the heated debates within the party over forty years ago, when anti-discrimination legislation was first proposed by the Labour government of the day.

With his party deeply and publically split, the then Shadow Home Secretary Quintin Hogg (later Lord Halisham) proposed a distinction about who could discriminate of which his successor in the post 42 years on offers a remarkable echo. As Enoch Powell's biographer Simon Heffer reports in his magisterial biography 'Like the Roman':

Hogg, in discussing what he thought was a flawed bill, said there needed to be a distinction between individuals who, say, chose not to sell their house to a black man because of feeling for their neighbours, and great commercial concerns that systematically discriminated. He said he hoped to move amendments in committee.

Heffer reports that Powell's silence and refusal to say whether this "reasoned amendment" would be enough, followed later in the month by his explosive Birmingham speech, led both Hogg and Whitelaw "to regard Powell as a double-crosser on account of this meeting ... [which] set the men apart for the rest of their lives".

It is often overlooked that the immediate peg for Enoch Powell's Rivers of Blood speech on immigration and repatriation was that the Race Relations Bill of 1968 was to come before Parliament. Powell set out why he was opposed to the principles underpinning legislation "against discrimination" while also arguing it would "risk throwing a match on to gunpowder":

As Mr Heath has put it we will have no "first-class citizens" and "second-class citizens." This does not mean that ... the citizen should be denied his right to discriminate in the management of his own affairs between one fellow-citizen and another or that he should be subjected to imposition as to his reasons and motive for behaving in one lawful manner rather than another.

That argument was long ago lost.

This reflects the history of progressive Conservatism which is, perhaps appropriately, rather conservative. You will very rarely find it in the vanguard of pro-equality changes. But, where other progressives make advances on equality, it is often the case that conservatives will accomodate rather than repeal these progressive advances made by others. That matters, because it does help to "ratify" and lock-in changes of this kind. (Evelyn Waugh complained that the problem with the Conservative party was that it had not turned the clock back a single second).

As a matter of policy and law, the anti-discrimination principle has surely now been pretty much settled for decades.

Grayling's views are legitimately being challenged to query the depth of change in the Tory party, and they will put pressure on his colleagues' confidence in the Shadow Home Secretary, but they are surely going to make no substantive policy difference at all.

But, having overstated the case against Tory ppc Stephen Parkinson yesterday, given the context of his remarks about gay assimilation in arguing against legislating for equality in 2002, I would much rather highlight the good news that Grayling's somewhat confused comments now represent what has become a rather fringe view.

A small minority agree with him: they can express their democratic view and try to reopen the argument. Dale's argument is challenged by The Devil's Kitchen, a libertarian and slightly sweary blog whose author Chris Mounsey has also become the leader of the UK Libertarian Party, which will attempt to appeal to the voters in a handful of constituencies in a few weeks time.

They will surely find that they have very little support in seeking to overturn the settled consensus against discrimination.


Silent Hunter said...

but demanding a faith-based right to discriminate is likely to prove incompatible with equality before the law.

That's an interesting premise . . . so how does that square with the Muslims right to slaughter animals in a way that breaks the law, if any non-muslim were to do it?

Isn't that an example of "faith based discrimination" which we readily allow despite it being "incompatible with equality before the law" for non muslims.

If we're to 'respect' the various foibles of various religious groups, then could we at least make it rational; otherwise we will be allowing the Jedi (which is now officially a BIG religion in the USA) to carry lightsabres to the shops. . . . "These aren't the cornflakes we're looking for, young Luke"

I understand that Christians (you now? - the ones that always "forgive" lol) have a problem with homosexuality which most rational people don't have; so is it such a BIG issue that they don't allow certain people in their homes? . . .remember Grayling did say specifically " their homes. . ."
Shouldn't everyone have the right to deny access to "their HOME" regardless of however daft the reason for it?

Personally, I'm far more exercised by Ed Balls seeming interference in a so called "independent report" about the tragedy of "Baby P".

How about an article on that Sunder?

Silent Hunter said...

BTW - I mean't to say to you Sunder, that although I disagree with a lot of your articles - I think you should be praised to the heavens (forgive the religious reference) for your blog allowing a very catholic (there I go again!) group of folk to comment here without deleting us into oblivion.

It speaks volumes that you are one of the defenders of free speech regardless of what we might say.

Thank you Sunder; you have one of the few Left of centre blogs that allows Free Speech.

And whilst I distrust the Tory Party (Yes, I'm an EX Labour voter) I absolutely HATE this Labour Party for it's appalling corruption and I find it hard to understand how someone who clearly respects freedom of speech can support a party that is the very antithesis of this.

But thank you again for allowing 'all sorts' (even me) to comment here.

Tom Freeman said...

"Grayling's somewhat confused commments now represent what has become a rather fringe view"

I'd like to think that you're right, and certainly expression of such views has become rather fringe, but I suspect that indulgence of this sort of thing still more widespread.

I guess the proof of the pudding will be in whether Grayking gets sacked. If a Labour or Lib Dem frontbencher said this, their feet wouldn't touch the ground.

Stuart White said...

Sunder: religious organizations, acting as employers, have had certain exemptions from anti-discrimination law for some time, and I think I'm right in saying that the Anglican bishops acted to secure some version of these in the recent debates over the Equality Bill...?

So a religious individual or household might well ask: if my church, qua employer, can get an exemption from anti-discrimination laws, why not me as an individual or as a family as an employer or service provider? Our legal practices actually point in two directions - an anti-discrimination direction and a religious liberty direction - and I don't think our society has a settled consensus yet on just how these are best balanced.

That all said, I think the Grayling position is mistaken. Of course, everyone has the right to control who comes into their home. On the other hand, if you set up a commercial enterprise then (on my non-libertarian view) society can insist that you meet certain social responsibilities as a condition of running the enterprise, and these can and should include requirements to avoid discrimination. Is this a burden on the conscience of, say, Christian homeowners who don't want to let gay men get up to sinful naughtiness under their blessed roof? No, because no one is forcing the Christians to use their home as a commercial enterprise....

In short, the reply to Grayling is: If Christians (or anyone else) want to discriminate about who enters their home, then that's fine, but if they choose to use the home as a B&B then they must accept the social responsibilities that come with this, and these include responsibilities not to discriminate on grounds of sexual orientation.

And I'd say something similar to religious groups acting as employers.

Anonymous said...

@Stuart - don't you think your division between religious faith and 'social responsibilities' is a little, well, facile. I mean, most Christians believe what they believe because they think it consistent with the way that God would wish them, and society, to live - could they not just as easily reply 'well, this is very much part of our social responsibilities, actually'...?

What you're actually saying is 'accept the social responsibilities as defined exclusively by the secular state, and by no greater authority than this'. In which case, to say you're a 'non-libertarian' is a tad modest of you...

Devil's Kitchen said...

"They will surely find that they have very little support in seeking to overturn the settled consensus against discrimination."

Erm... What?

Look, we don't support discrimination. We do support freedom of association. These are two entirely different things.

Speaking personally, I would boycott any shop, B&B, hotel, etc. that refused to serve blacks, gays or whoever, but that is my right as an individual.

But are you telling me that a business owner should have no say in who they serve?

If so, you are utterly repudiating free markets—in which both buyer and seller must do so voluntarily—and freedom of association.

I am not even going to bother pointing out what kind of regimes also support that position.


Unknown said...

DK, presumably you also oppose consumer rights legislation? Health and safety inspections? Child labour laws?

Good luck with that on the doorstep!

Sunder Katwala said...


Thanks for your response.

Yes, I am arguing that the core principle which Powell argued in 1968 - that not having first/second class citizens depended only on the public authorities not discriminating, but that they have no business in the choices which are made by private citizens or organisations, or whatever reasons lie behind them - was pretty much settled in the late 1960s and '70s.

That principle would oppose eg disenfranchisement on grounds of race, or legislation to enforce apartheid-style segregation, but would allow individuals to offer a 'no Irish' or 'no gays' sign or tacit policy, and have no business in issues like discrimination against women candidates who could show they were best qualified for jobs. While the issue of where to draw these lines remains contested, the idea that the line itself is an offence against liberty which turns us into an authoritarian dictatorship is one where you are failing to carry the opinion of our democratic society.

I appreciate that there is a minority view. One can be in favour of the widespread use of markets without agreeing with your view of what free markets must entail. For example, I do not accept that the minimum wage (which could addresses a power inequality in employer-employee relations) means the utter destruction of a jobs market. I imagine you oppose it; again, I think you will now struggle to find sufficient support to overturn it.

If you can do any of get, say, a couple of million people to sign a petition calling for the abolition of the minimum wage; win parliamentary seats by running on this issue; or provide polling evidence showing majorities would repeal the race, gender discrimination laws, etc then I will withdraw the claim about this being a minority position.