In this guest piece, Nathan Davis and Elisa Daykin explore how current laws are failing to tackle racism in both the UK and USA, the ways in which you can help bring about reform, and the active role athletes are playing in enacting change.
If you have any further questions regarding please contact Nathan, Elisa or the editor of this piece Matthew Berrick.
Answering the call:
On the 2nd of April 2020, during his daily COVID-19 press conference, Health Secretary Matt Hancock called on footballers to ‘play their part’. Hancock’s plea for Premier League players to take a pay-cut, was widely rebuffed as an attempt to sidetrack and scapegoat. After all, there was no public shaming of any other sector of society and certainly no indication that any cabinet members would be reducing their pay. Nonetheless, footballers stood up. Jordan Henderson coordinated a multi million-pound NHS fund, Marcus Rashford spearheaded a campaign providing free school meals to 400,000 of the country’s most vulnerable children and the images of Premier League players taking a knee have reverberated around the world.
These commendable acts were not exclusive to football either. Four years ago, Colin Kapernick first took the knee and in doing so the symbol of a global movement was created, not by a politician or social activist; but by a San Francisco 49er, who sacrificed his career to highlight the oppression black people face in America. Almost four years to that day, the Milwaukee Bucks and the rest of the NBA boycotted their scheduled playoff games in protest of the shooting of Jacob Blake.
The Milwaukee Bucks released a statement that read; ‘despite the overwhelming plea for change, there has been no action, so our focus today cannot be on basketball’. The statement captured the issue at heart; LeBron James should be able to focus on basketball and Marcus Rashford should not have to worry about forcing a governmental U-turn. In a truly unprecedented year our athletes have become leaders, activists, philanthropists and even policy makers.
Following the NBA walkout Shaquille O’Neal stated, ‘I’m not sure that cancelling the game is going to make a racist person not racist anymore… we have to identify certain problems and take them down’. One issue is the law. Of course merely reforming legislation will not bring about the change required to overhaul systemic racism. Those ‘certain issues’ also include racial inequality in education, employment and healthcare, which all require significant change in order to eradicate ‘de facto’ racism. But legislative reform would be a start. So where is reform needed and how may it occur?
Understanding and Addressing the issues in the UK:
How laws are made and amended in the UK:
In the United Kingdom parliamentary sovereignty grants Westminster a legally unlimited lawmaking capacity. As per Dicey, parliamentary sovereignty outlines Parliament’s right ‘to make or unmake any law and further no person or body is recognised by the law of England as having a right to set aside the legislation of Parliament’. This means that any reform to legislation would have to go through Parliament.
Another important theory is the rule of law, which some see as superior constitutional power over parliamentary sovereignty. A central belief of the rule of law, is that the law should be capable of guiding behaviour and subsequently should prevent the police from being able to pervert justice. Furthermore, courts are moving towards a substantive understanding of the rule of law, which emphasises the need for the law to be morally sound. Thus, the growing significance of this theory could influence pressure to reform legislation that is morally suspect, including current inadequate legislation surrounding equality (as discussed below).
Understanding The Equality Act 2010:
In the United Kingdom, The Equality Act 2010 outlines race as one of the nine protected characteristics. It is unlawful to discriminate against someone on the grounds of a protected characteristic, and those associated with another who meets this criteria. In the Act, race is defined widely to include: colour, nationality and ethnic or national origins. Within the Act discrimnation is categorised into four definitions: direct discrimination, indirect discrimination, harasment and victimisation. The relatively wide definitions for both discrimination and race, have meant that the Equality Act 2010 has made significant advancements to the prior legislation.
However, Sections 149 – 157 of the Equality Act 2010, which outline the duties of public authorities to uphold equality, could be redrafted. Schedule 19 lists the police as a public authority, which is significant given the wide criticisms of racial inequality around policing; especially stop and search. Section 149 states, ‘a public authority must… have due regard to the need to eliminate discrmination, harassment, victimisation and any other conduct prohibited under this act’. This, alongside Schedule 19, would mean that the police must consciously consider the need to eliminate discrimnation, advance equality of opportunity and foster good relations. However, issues arise in Section 156 which outlines, ‘a failure in performance of a duty imposed by this chapter does not confer a cause of action at private law’. A cause of action is an umbrella term meaning there is a sufficient set of facts to justify a court to award a legal remedy. Essentially, this infers that if the police act in a discriminatory manner, there is still no real legal grounds to sue under the Equality Act 2010. Thus, it seems Section 156 would benefit from reform. Whilst there may be concerns around reform causing a disproportionate influx of civil cases against the police, this could be regulated by outlining a number of scenarios where failure to meet the duty may lead to cause of action, rather than the legislation being so cut and dry.
The additional legal opinion for this piece is provided by Elisa Daykin. Elisa is a First-class Law graduate from The University of Sheffield and is currently studying for her LPC at The University of Law, Sheffield.
Reform in the USA:
In Minnesota, Judge Peter Cahill has set a trial date of March 2021 for the former police officers accused in the death of George Floyd. Yet, there is widespread concern that justice will not be served – this is partially due to the legal doctrine of qualified immunity.
What is qualified immunity, and where did it originate from?
Qualified immunity ‘shields government officials from constitutional claims for…damages so long as the officials did not violate clearly established law’.
The Civil Rights Act (1871) established the right of US citizens to claim damages from government officials who violated their constitutional rights. However, a string of Supreme Court decisions introduced the doctrine of qualified immunity, restricting this right – in 1967 it was presented as an exception to those acting in ‘good faith’. Yet, just 15 years later, the burden of proof fell to the victim to prove their right was ‘clearly established’.
Clearly established means presenting a violation to the court which has an analogous factual matrix to a case which has been decided upon previously. This notoriously restrictive threshold has been criticised for dismissing liability of unconstitutional conduct, ‘simply because it has not specifically been declared so in a prior decision’.
Conflicting rights – Police officer vs Citizen
In the 1970’s, The Supreme Court stated that qualified immunity balances the need to protect officials exercising discretion and the importance of a remedy to protect citizens. Yet, as this ‘balance’ tips further, recent justifications range from ‘protecting officers from the cost of civil lawsuits’, to the ‘reduction of a deterrent for officers when carrying out duties’.
Law enforcement officers are generally successful with this defence in court, meaning that there is little incentive to improve practice – leaving the black community vulnerable, who are 2.5 x more likely to be killed by the police than white people. Furthermore, as cases are unlikely to be won, lawyers are rarely able to recover legal fees under The Civil Rights Attorney’s Fees Award Act 1976, meaning victims are less likely to be able to find representation.
Push for change
Whilst the Supreme Court is yet to retract the doctrine, there is growing recognition across political and legal fields that it clearly diminishes constitutional protection. This momentum has been echoed within the sporting community, as support has overwhelmingly assembled for the proposed ‘Ending Qualified Immunity Act’.
Over 1,400 athletes and coaches – from the NFL, NBA, and BLB – have signed the petition asking that Congress pass the bill, with the Players Coalition stating that ‘qualified immunity has shielded some of the worst law enforcement officials in America’. From 2005, when NC Central Coach LeVelle Moton was snatched out of his truck with a gun to his head, to 2018, when Milwaukee Bucks’ Sterling Brown was tackled to the ground and tasered for an alleged parking violation, it is clear that racism and police brutality are prevalent in all walks of life.
How will the bill law become law?
A bill must be introduced by a member of Congress, into either of the 2 chambers – The Senate or The House of Representatives (in this case Justin Amash and Ayanna Pressley, in The House of Representatives).
The committee will either amend, or ignore the bill – this is usually where most bills fail. If not, it will be debated on the floor, where it may be amended again. If a majority votes in favour of the bill, it then goes to the other chamber (The Senate) where the process is repeated.
If the bill is approved by the other chamber, it then goes to the President. The President could sign the bill, enabling it to become law, or he could veto the bill. To override the President’s veto, a 2/3 vote majority would be needed again in both houses for it to become law.
Whilst the political landscape in the US is rooted in extreme partisan polarization, that extends beyond policy differences into an existential conflict over race and culture, change is possible. Although the introduction of this law would be no substitute for institutional reorganisation, or a move towards investment in social welfare and preventative policy, it would provide a vital rectification, to ensure citizens are afforded the legal protection that was initially intended when Congress passed the Act.
Athletes played their part by raising awareness and standing in solidarity with the BLM movement. Now those in a position of power, from Sport England to the Senate, must act decisively. In the sporting sphere, stricter disciplinary regulations tackling racism must be introduced in the form of increased fines, prolonged games behind closed doors or even the possibility of point deductions. In politics, legislative reform is required, beginning with repealing qualified immunity.