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.
A. INCONSISTENCIES
IN THE
RACE RELATIONS
ACT 1976 (AS
AMENDED)
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.
B. EXTENSION
OF PROTECTION
AGAINST DISCRIMINATION
TO ALL
IMMIGRANT RELIGIOUS
MINORITIES
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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