Draft Race Relations Act
1976 (Amendment) Regulations 2003: memorandum from the Home Office
Race Relations Act 1976 (Amendment) Regulations
1. It is understood that the Joint Committee would
welcome a memorandum which explains, in particular, the inclusion
of "national origins" as one of the grounds of unlawful
discrimination or harassment set out in these draft regulations
(in addition to "race or ethnic origins") when the Directive
which they seek to implement refers to the grounds of "racial
or ethnic origin" and expressly excludes nationality.
2. In brief the reason for the inclusion of these
words is that it appears to be the most appropriate way, in the
context of current domestic law, to implement this aspect of the
UK's obligations under the Directive, at least as far as Great
Britain is concerned. However it may assist the Committee if this
Memorandum sets out briefly the background to this question.
3. Council Directive 200/42/EC ("the Directive"copy
introduces new requirements relating to race relations which,
insofar as they are not already part of domestic law, have to
be implemented within the UK by 19th July 2003. The Directive
requires (article 2.1) that, within the areas covered by it, there
is to be no direct or indirect discrimination on grounds of "racial
or ethnic origin" (what the Directive refers to as "the
principle of equal treatment").
4. The main features of the Directive, so far as
domestic race relations law is concerned, are the introduction
of a new definition of indirect discrimination, the definition
of what constitutes racial harassment, a new exception (from what
would otherwise be unlawful discrimination) in relation to employment
where being of a certain origin is a genuine and determining occupational
requirement, a shift in the burden of proof and the requirement
to repeal all laws which are "contrary to the principle of
5. The Directive applies (article 3.1) to the areas
of employment (and related matters such as vocational training,
working conditions, trade unions and employers' organisations),
social protection (including social security and healthcare),
social advantage, education and provision of goods and services
to the public (including housing). It therefore has a somewhat
wider "material" scope than some other Article 13 Directives
which are more restricted to employment matters.
"Racial or ethnic origin"
6. As previously indicated, the Directive is concerned
with "discrimination based on racial or ethnic origin".
The words "racial or ethnic origin" are taken directly
from article 13 of the Treaty, which is of course concerned with
a variety of forms of discrimination. Article 3.2 of the Directive
states that the Directive "does not cover difference of treatment
based on nationality" and is "without prejudice to provisions
and conditions relating to the entry into, and residence of, third
and to any treatment which arises from
the legal status of the third country nationals
(See also, in this connection, recital (13)).
7. This does not necessarily mean that nationality
discrimination is unrelated to discrimination on grounds of racial
or ethnic origin. The reason for the exclusion appears to be that
to include nationality in the Directive would cut across both
the existing directly effective prohibition in article 12 and
the necessarily complex legislation on the treatment of third
8. On the other hand it is to be noted that in recital
(6) to the Directive the EU "rejects theories which attempt
to determine the existence of separate human races. The use of
the term "racial origin" in the Directive does not imply
an acceptance of such theories".
9. Furthermore, it is clear from recital (7) that
the European Council regards the Directive as an important weapon
in "the fight against racism and xenophobia". Recitals
(5), (10) and (11) also refer to "xenophobic behaviour".
10. Finally, as regards the Directive, it is to be
noted that recital (15) makes it clear that "the appreciation
of the facts from which it may be inferred that there has been
direct or indirect discrimination [on the grounds of racial or
ethnic origin] is a matter for national, judicial or other competent
bodies, in accordance with rules of national law and practice".
The Race Relations Act 1976
11. Implementation of the Directive necessitates
amendments to the Race Relations Act 1976 ("the 1976 Act")
which applies to England, Wales and Scotland. Section 1 of the
1976 Act makes it unlawful to discriminate, directly or indirectly,
against someone in the areas covered by the Directive (and in
other areas), on "racial grounds". There is currently
no statutory definition of "harassment", although the
concept has been developed through case law. By virtue of section
3 of the 1976 Act "racial grounds" means "any of
the following grounds, namely, colour, race, nationality, or ethnic
or national origins". There is no reference to "racial
origin" as such.
12. Since the Directive expressly excludes nationality
and omits any reference to colour, the implementation exercise
was addressed by reference to the remaining grounds of "race
or ethnic or national origins". Halsbury's laws volume 13
(Discrimination) at paragraph 401, footnote 4, state that ""National
origins" refers to racial origin, as opposed to nationality",
citing Ealing Borough Council v Race Relations Board 
AC 342  1 AER, HL, which was the case (involving a person
of Polish origins) which resulted in a separate reference to "nationality"
being added to the statutory grounds of discrimination. In that
case Lord Dilhorne took the view (page 112 at b) "that the
word "national" in "national origins" means
national in the sense of race and not citizenship". Lord
Cross (page 117 at h) said that ""national origins"
and "nationality" in the legal sense are two quite different
13. There can be no doubt that a person of a particular
race or of particular ethnic or national origins is regarded as
a member of a "racial group" for the purposes of the
1976 Act (see s3 (1)) and it is considered that to actually use
the term "racial origins" in light of what appears to
have become the commonly accepted meaning of "national origins"
might have unintended and limiting consequences, as well as adding
to the complexities already caused by having to draft by reference
to "race or ethnic or national origins".
14. It is considered that to refer, in this context,
to "racial origins" could mean that, whilst it would
still be unlawful to discriminate against a person under the existing
definitions of direct and indirect discrimination because he was
French, it would be lawful to discriminate against him on that
ground under the new definition of indirect discrimination, or
to harass him. In the recent state of "Euro-sensitivity"
over Iraq that could have been thought somewhat xenophobic and
contrary to the intention behind recitals, (5), (7), (10) and
(11) (see para 9 above), as well as being contrary to the general
purposes of the Directive.
15. Another consequence of attempting to define in
terms of "racial origins" could be that, whilst under
the existing provisions of the 1976 Act it would be unlawful to
discriminate against someone or, under existing case law, to harass
him, because he was an Iraqi, it would not be unlawful to do so
under the new definitions of indirect discrimination and harassment,
although it would be unlawful to discriminate against him or harass
him on grounds of his race (which would seem contrary to recital
(6)) if, say, he was a Kurd. Similarly, to take Lord Cross's example,
it would be lawful to discriminate against, or harass, a person
because he was a Pakistani but unlawful to do those things against
him on the grounds of the race to which he belongs.
16. Finally, whilst under the existing provisions
of the 1976 Act it would be unlawful to discriminate against a
German Jew, either on the ground that he was a German or on the
ground that he was a Jew, if "national origins" were
cut down to "racial origins" it could mean that, under
the new provisions, discrimination or harassment would only be
unlawful on the latter of the two grounds.
17. It is considered that, in light of recital (15)
(see para 10 above) the purposes of the Directive can be achieved
without having to limit the wording of the grounds of discrimination
to "race or ethnic origins" and without having to use
the words "racial origins" instead of "national
origins". Indeed, in light of the above (and given that "national
origins" will remain in place to deal with discrimination
under the existing provisions of the 1976 Act), it is considered
that it would be difficult to achieve the purposes of the Directive
without using the words "national origins", and that
an attempt to do so might well risk under-implementation of the
9 May 2003
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