Joint Committee on Statutory Instruments Twentieth Report

Appendix 4

Draft Race Relations Act 1976 (Amendment) Regulations 2003: memorandum from the Home Office

Race Relations Act 1976 (Amendment) Regulations 2003

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.

The Directive

3. Council Directive 200/42/EC ("the Directive"—copy enclosed[5]) 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 equal treatment".

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 country nationals … 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 country nationals.

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 [1972] AC 342 [1972] 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 conceptions".

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 Directive.

9 May 2003

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