Written by:
Lester Holloway

Intending not to discriminate isn't enough

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The hostile environment immigration policy has caused the recent uptick in the threat of detention and deportation, and the denial of rights to employment, housing and health to the #Windrush generation. Some say this can’t be true, because it wasn’t the intent of the policy to affect the #Windrush generation. 

The idea that we should judge a policy or action only by its intent and never by its effects isn’t usually defended. Parents rightly tell their children pushing a sibling is wrong even if the intent wasn’t to break their sister’s arm, and the criminal justice system apportions responsibility and punishment on the effects of a crime, not just the intent of the perpetrator (hence the charge of manslaughter).

But in the context of race, it’s increasingly common to hear people denying a racial inequality is really a sign of an injustice, precisely because it wasn’t the intent. Some cleverly express an outraged defence: 'are you saying the minister or policymaker is racist?' calculating that this tactic will scare critics of the policy into backing down.

Everyone knows that a disproportionality doesn’t necessarily mean there’s been an injustice and that rhetoricians like to offer strawmen in place of reading their opponents’ arguments. With racial inequalities, and with the #Windrush generation, we’re now in the upside-down world where those inequalities are almost never a sign of an injustice because admitting that would be to acknowledge racial injustice persists.

Recall David Cameron’s argument in scrapping equality impact assessments: ‘We have smart people in Whitehall who consider equalities issues while they're making the policy.’ This combines the error of thinking that ‘smart people’ can always spot and prevent discriminatory effects, with assuming speaking to ‘smart people’ alone is sufficient for understanding a policy issue. Similar responses have been given to Runnymede’s questioning of the impact of the budget, or changes to child poverty measurement: the intent wasn’t discriminatory, so why are you asking about the effects?

Yet this is precisely the point of domestic equality legislation, at least since the 1970s when the distinction between ‘direct’ and ‘indirect’ legislation was introduced, and from the 1960s in international human rights legislation that the UK has signed up to (where the distinction is between ‘purpose’ and ‘effect’).

In the case of the hostile environment, the government argues that it wasn’t an intent of the policy to affect the #Windrushgeneration. That the purpose was instead to target ‘illegal immigrants’ only.

But critics of the policy have of course always known this. The objection to the hostile immigration policy was that whatever the stated intent, the effect would be much wider: affecting anyone with limited documentation as well as legal migrants, that it would incentivise landlords and others to discriminate, and that it would toxify public debate as well as Home Office attitudes and actions in implementing immigration policy generally.

Furthermore, many of us argued that this was a predictable consequence. The predicted effects were so obvious that policymakers and ministers either didn’t understand or didn’t care about the experience of or impact on anyone born overseas, and indeed on UK-born ethnic minorities. If ministers or policymakers didn’t bother to read about or learn about such obvious consequences, then clearly it was their intent to avoid countervailing evidence, a decision for which they cannot avoid responsibility either.

It’s baffling that this ‘defence’ of ‘it wasn’t our intent’ is still being suggested even as the predicted consequences have now actually happened. To right, the #Windrushgeneration wrong the government will not only have to scrap the hostile environment policy but also change its approach to issues on race, immigration and equality generally.

First, it must strengthen further equality duties and impact assessments, so that the unintended, as well as the intended effects of a policy, are properly understood, scrutinised, and amended where appropriate. Second, it must better reach out and listen to migrant and black and minority ethnic communities, even where those communities disagree with them. Unless the government changes course in these ways, we’ll continue to see racially disproportionate effects in all policymaking areas, the persistence and extensiveness of which raises serious questions about this government’s intent.

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