Joint Committee On Human Rights Written Evidence

9.  Memorandum from the Discrimination Law Association

  1.  The Discrimination Law Association ("DLA") is a membership organisation established to promote good community relations by the advancement of education in the field of anti-discrimination law and practice. It achieves this by, among other things, the promotion and dissemination of advice and information; the development and co-ordination of contacts with discrimination law practitioners and similar people and organisations in the UK and internationally. The DLA is concerned with achieving an understanding of the needs of victims of discrimination amongst lawyers, law makers and others and of the necessity for a complainant-centred approach to anti-discrimination law and practice. With this in mind the DLA seeks to secure improvements in discrimination law and practice in the United Kingdom, Europe and at an international level.

  2.  The DLA was one of the signatories to the shadow report submitted to the UN Committee on the Elimination of all Forms of Racial Discrimination by a group of non-governmental organisations. We welcome the careful consideration the UN Committee has given to our submissions and the serious matters it has raised in its observations.

  3.  Given the particular experience and expertise of the DLA, in this submission to the Joint Committee on Human Rights we have identified two particular matters raised in the concluding observations of the UN Committee which we would like to comment on and develop further.


  4.  In paragraph 15 of their concluding observations, the UN Committee expresses concern regarding the inconsistencies within the 1976 Race Relations Act (the RRA) since its amendment by the Race Relations Act 1976 (Amendment) Regulations 2003 (the 2003 Regulations).

  5.  For completeness it is important to note that the important changes to the RRA which these regulations introduced, including a wider definition of indirect discrimination, a statutory definition of harassment and provision for the shift of the burden of proof, not only do not apply to discrimination on grounds of colour or nationality but also do not apply to the enforcement and regulatory functions of public authorities that had been brought within the scope of the Act by the Race Relations (Amendment) Act 2000.

  6.  The 2003 Regulations introduce into the RRA a new subsection 1(1B) that lists the provisions of the RRA to which these new definitions etc apply, including the field of employment, public appointments, education at all levels and the provision of goods facilities and services. In respect of other functions of public authorities the new definitions and shift of the burden of proof apply to "any form of social security, health care, any other form of social protection and any form of social advantage" (s1(1B)(c), but not to any other functions of public authorities. The full extent of "social advantage" is not specified in the EC Directives, and will await decisions of the European Court of Justice; the DLA does not expect any interpretation to include exercise of police powers of stop and search, arrest and detention, discipline regimes within prisons or other closed institutions, immigration control, compulsory detention of mental patients or the enforcement functions of local authorities. Thus, none if the new definitions apply to such activities, which it had been so important to include within the RRA.

  7.  One of the major achievements of the Race Relations (Amendment) Act 2000, was the imposition on all public authorities of a statutory duty that includes both the elimination of unlawful discrimination and the promotion of race equality and good race relations. We are concerned that lack of clarity as to what constitutes unlawful discrimination by the police, prison authorities, immigration authorities, local authorities and others will make it difficult if not impossible for such bodies to comply with this duty.

  8.  Well in advance of the 2003 Regulations being tabled in parliament, the government had been fully advised by the Commission for Racial Equality, by the DLA and others that its decision to transpose the EC Race Directive by regulations under section 2(2) of the European Communities Act 1972 would undermine the effectiveness of the RRA and make it almost incomprehensible. Nevertheless the government proceeded with its proposal, knowing that it would create different degrees of protection for different grounds or in respect of different activities. A few members of the House of Lords strongly criticised this approach when the Regulations were before them for approval, but to no avail.

  9.  On page 10 of its consultation document "Equality and Diversity—the way ahead", published in October 2002, the government stated "We intend to rectify any inconsistencies that occur in the amended Race Relations Act as a result when an opportunity arises." The DLA sees just such opportunity in the forthcoming bill to create a commission for equality and human rights, as we understand that that bill will also include provisions to extend protection against discrimination on grounds of religion or belief to activities outside the field of employment (see below). We can see no reason why that bill cannot also amend the RRA so that the same definitions and same provisions regarding the burden of proof apply to all grounds covered by the Act and all activities within its scope. This bill would also provide an opportunity to remove the unacceptable exception in section 19D, which, in effect, licenses discrimination by immigration officers. We strongly urge the Joint Committee on Human Rights to recommend this course of action.


  10.  In paragraph 20 the UN Committee recommends that protection against discrimination should be extended to all immigrant religious minorities. The DLA wholly endorses this recommendation.

  11.  The Employment Equality (Religion or Belief) Regulations 2003 prohibit discrimination on grounds of religion or belief in all aspects of employment, appointment to public office, in relation to trade unions and employers' or professional organisations, by qualification bodies and in further and higher education. This still leaves a disparity between the wider protection against discrimination enjoyed by Sikhs and Jews under the RRA and members of other religious groups. On page 13 of its response to the consultation on a new commission for equality and human rights, published 19 November 2004, the government announced its intention to introduce legislation that will prohibit discrimination on grounds of religion or belief in the provision of goods, facilities and services and disposal and management of premises. The government is "actively considering extension to public functions". The proposals are to cover "direct and indirect discrimination and victimisation".

  12.  Having regard to the reported disproportionate use against Muslims of police powers of stop and search, search of premises and arrest, it is especially important that the new legislation includes a provision comparable to section 19B of the Race Relations Act, which outlaws discrimination in the carrying out of public functions not otherwise covered.

  13.  Notable in the government's statement is the omission of harassment in the proposed legislation. Based on the experience of DLA lawyers in applying the existing anti-discrimination laws, we strongly recommend that, to the maximum extent possible, anti-discrimination laws should be internally consistent and there should be maximum consistency and coherence between the different laws. The latter is especially important where more than one law is likely to be relevant to the same, or related, groups of persons.

  14.  Therefore, the DLA urges the Joint Committee on Human Rights to recommend that the proposed provisions to extend protection against discrimination on grounds of religion or belief should be as consistent as possible with relevant provisions in the Employment Equality (Religion or Belief) Regulations 2003 and relevant provisions in the Race Relations Act.

  15.  Specifically, the new measure should include all public functions and should incorporate the same definitions of direct and indirect discrimination and victimisation, and should provide the same statutory protection against harassment that now applies to discrimination on grounds of religion or belief in employment and further and higher education under the Employment Equality (Religion on Belief) Regulations 2003 and to most activities within the scope of the RRA (see above).

  16.  The DLA would be pleased to assist the Joint Committee on Human Rights in respect of the above or other matters raised by the UN Committee.

30 November 2004

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