by Dr Karla Perez Portilla, Lecturer in Law, Department of Economics & Law, Member Wise Centre for Economic Justice
In this blog, Karla summarises her points at the workshop, Addressing Institutional Racism in the Scottish Justice System. The Scottish Institute for Policing Research (SIPR) and the Scottish Centre for Crime and Justice Research (SCCJR) organised this interactive event with the support of the Scottish Government’s Cross Justice Working Group on Race Data and Evidence (CJWG). It took place at the University of Edinburgh on the 24th of October 2024.
Institutional Racism What does that even mean?
I once heard somebody incredulously asking, what does institutional racism even mean? They somehow doubted that it was something with any substance. The tone of the expression suggests the need for clarity about this term and also the urgency to acknowledge and value, the process and the lived experience, that made it possible to articulate the injustice that the term names.
On the 24th of October, I addressed these concerns in a workshop titled, Addressing Institutional Racism in the Scottish Justice System. Next, I outline the main points of my argument.
1 The rights that we have are not the gift of enlightened rulers[1]
The reason why we have the vocabulary for specific forms of injustice is because people with lived experience have voiced their claims, and these, have then been given a place in existing or new legal frameworks, but not without significant difficulties. This is true, for example, for the sexual harassment of working women. Catherine MacKinnon formulated it as a form of sex discrimination. Before that, it was a harm without a name or remedy. The concept of intersectionality that Kimberlé Crenshaw coined to name the injustice experienced by black women has a similar origin and, indeed, the concept of institutional racism did not emerge ‘out of the blue’. We owe it to the tireless efforts of Doreen Lawrence to seek justice for her son Stephen Lawrence who was racially murdered. It was the Inquiry that followed his death that found that the Metropolitan Police was institutionally racist.
2 To understand a problem, we need to know its history. To redress it, we need the will to do so
Speaking about institutional racism only makes sense when we acknowledge it as the legacy of imperialism, colonialism and slavery, where the major institutions such as the education, justice and health systems were not made to serve racialised people, quite the contrary.
I often tell my students that such a legacy is to humanity, like a childhood trauma. It may have happened many years ago but, like any trauma, if it is not acknowledged and addressed, it keeps coming back in harmful behaviours and actions. A young person told me once that he felt we were living with the ‘hangover of colonialism’ and I said, it is more like the ‘Hair of the dog’, as we keep reproducing racist values with dire consequences and this is precisely what needs to be challenged. In my view, a fundamental obstacle to effective anti-racist actions is the implicit sense that the claims of racialised people are not a priority or, indeed, are unwarranted in what is seen as a ‘white country’.[2]
In my 2010 PhD dissertation, for example, I urged the need to have more representation of racialised groups in the media. Answering this, a colleague told me, but Karla, this is a ‘white country’. The statement stuck in my mind ever since. I believe its sense is at the core of the wilful failure to acknowledge and redress institutional racism. In that view, racialised groups’ claims for equitable employment opportunities and effective service delivery cannot be a priority. I do not believe countries have ‘a colour’, what countries do have is a history, and humanity’s history is one of migration and movement wherever we look.
Knowledge of history, thus, is not enough, actions against racism require a compassionate and empathetic approach, one in which we aim to live as peers in society.[3]
3 Defining institutional racism: unwitting or unchallenged prejudice?
Although there is no statutory definition of institutional racism, a frequently cited one is found in the MacPherson’s Report:
‘The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.’
The unwitting element is problematic. It ‘lets off the hook’ deliberate actions and the responsibility of managers and senior leaders. Moreover, what matters in law are the effects, not the intentions. What is necessary then, is to actively challenge the prejudice and fix the processes, attitudes and behaviour, which amount to discrimination. To do this, institutions need to revise all their functions as employers and service providers.
4 How can institutions be accountable?
The Public Sector Equality Duty (PSED) requires Public Sector Organisations (institutions) to prevent discrimination and promote equality. However, the duty is framed in terms of ‘paying due regard’ as opposed to a command to ‘take all proportionate/reasonable steps’ towards the statutory goals. Arguably, as a result, the duty has become a form-filling bureaucratic exercise. Failure to comply can be challenged through judicial review. However, this process cannot increase budgets or change decisions. It cannot command the leadership necessary to make anti-racism a priority.
There are, therefore, enforcement mechanisms and a regulator, the Equality and Human Rights Commission (EHRC). However, both require strengthening. This is acknowledged in the Scottish Programme for Government 2024-25, ‘action to enhance the effectiveness of the PSED’. The Equality Act 2010 is, however, an Act of Westminster and so, it remains to be seen what changes are possible from a Scottish perspective.
5 Institutional racism or simply ‘bad apples’?
Racism is systemic. This means that it exists and is operational at various interacting levels: structural, cultural, institutional and personal.[4] Only individuals can, for example, harass and discriminate in recruitment processes. However, individuals do so based on prejudices and stereotypes originating in the culture they inhabit. For example, in the education they received and the education they did not. Institutional responsibility lies in putting those individuals in the position that they have, without effective training, management, complaint mechanisms and policies. As a result, institutions fail racialised individuals, both, as their employers and service providers. Largely this is because institutions themselves are ‘part and parcel’ of the imperial past and hence require a deep examination of the extent to which they reproduce its values. At a structural level is the law, through the shortcomings of the PSED and the arguable impossibility for the EHRC to enforce the duty effectively. Its resources are limited and it has had its fair share of institutional racism controversies. Bad apples, therefore, do not act outside their structural, cultural and institutional context. Hence, redressing racism requires action at all levels and by all institutions, as efforts in silo, will be hindered by the persistence of racism elsewhere.
Andrew Johnson and Stuart Ainsworth’s SCIP Analysis: Examining and bringing about social justice needs to do so via four dynamic interacting levels
6 What should the recognition of institutional racism mean?
Acknowledging institutional racism should mean an institution’s permanent commitment and accountability to prevent and redress racial discrimination as employer and service provider. It has to be a permanent commitment because racism is an ideology. It only takes one political or economic crisis for any achievement to be put in jeopardy. Antiracist work requires institutions to be permanently vigilant, make anti-racism a priority, and budget for it.
This requires a leadership position that actually believes that everyone deserves effective service delivery and an opportunity to work in environments that respect human dignity. Tackling institutional racism effectively requires that impetus. Without it, it is like having everything to bake: the utensils, the ingredients, the cook, and the oven; but if the oven has no heat, no impetus, there is no baking. Addressing institutional racism requires us to build on, and keep alive, the flame that Doreen Lawrence, ignited once.
[1] Hepple, B. (2010). The New Single Equality Act in Britain. The Equal Rights Review, vol. 5, p. 11.
[2] See also Cave v Open University [2023] 5 WLUK 425
[3] Fraser, N (2003), ‘Social Justice in the age of identity politics: redistribution, recognition and participation’, in Fraser, N and Honneth, A, Redistribution or Recognition? A Political-Philosophical Exchange, London: Verso.
[4] Pérez Portilla, K. (2016). Redressing Everyday Discrimination. The weakness and potential of anti-discrimination law. UK: Routledge, pp. 49-80.
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