Minority Rights Protection in the United Kingdom

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Minority Rights Protection in the United Kingdom

in European Yearbook of Minority Issues Online


1 Report submitted by the United Kingdom pursuant to Article 25 to the Framework Convention for the Protection of National Minorities, received on 26 July 1999, para. 2. 2 Ibid. 3 Ibid. 4 State report, para. 45.

5 Ibid., para. 92. 6 Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on the United Kingdom, adopted on 30 November 2001, para. 14. 7 State report., para. 2. 8 Commission for Racial Equality v. Dutton [1989] 2 WLR 17 (Court of Appeal). Despite recognizing Gypsies as an ethnic group for the purposes of race-relations legislation, the Dutton case implied racial and ethnic differentiation between Gypsies and Travellers. 9 Minority Rights Group International, World Directory of Minorities (London, 1997), 184. 10 Declaration handed at the time of deposit of the instrument of ratification on 27 March 2000. " Ibid.

`z Fifth Periodic Report by the United Kingdom of Great Britain and Northern Ireland under Article 40 of the International Covenant on Civil and Political Rights, August 1999, paras. 634-646, available from the Lord Chancellor's Department, Human Rights Division at http://www.lcd.gov.uk/ hract/partlsr.htm. It is interesting that commentary on Article 27 relates only to "non-indigenous" and "indigenous minority languages" rather than to a general discussion of all minority-relevant provisions within the United Kingdom.

'3 State report, paras. 9, 53. 'a Ibid., paras. 10-11, 106-110. 15 sir William Macpherson, Inquiry into the Matters Arising from the Death of Stephen Lawrence, 1999, at http://www.archive.official-documents.co.uk/document/cm42/4262/4262.htm. '6 Ibid., chapter 47; state report, paras. 114-126. " State report, paras. 71-72. 18 State report, Foreword. 19 State report, paras. 65-69. In relation to discrimination against applicants and employers, exceptions to RRA 1976 exist in cases of "genuine occupational qualifications" whereby a job involves participa- tion of individuals from a particular racial group for reasons of authenticity. 20 Home Office, "Guide to the Race Relations 1976 Act" (2000), Introduction, at http://www. homeoffice.gov.uk.

21 sections 43-45 RRA 1976. 22 sections 48-51 RRA 1976. for further details of the work of the Equality Commission, see at http://www.equalityni.org. and for the Northern Ireland Human Rights Commission, see at http://www.nihrc.org. 24 See also Explanatory Notes to Race Relations (Amendment) Act 2000, paras. 3-8. 25 This move does not, however, affect the individual legal liability of police officers for their actions. See also Explanatory Notes to Raee Relations (Amendment) Act 2000, para. 45, which states that an individual who has been discriminated against by another in the course of that other's employment may "bring an action against the employer as well as against the discriminator". 26 statutory Instrument 2001 No. 3457. The Order came into force on 3 December 2001.

27 Explanatory Notes to Race Relations (Amendment) Act 2000, para. 28. 28 Statutory Instrument 2001 No. 3458. 29 r2(3).

30 s3(4). It is claimed that such requirement to supply a suitable comparator is particularly problematic for Gypsies or Travellers. See Gaby Charing, "Gypsies, Travellers and Discrimination Law 15 Discrimination Law Association Briefings (February 2002). 9 at 10: "A claim of direct racial discrimina- tion may well be founded if the applicant can find a comparator for instance, when there is trouble on a housing estate, it is the practice to go after those causing the trouble. One does not hear of entire estates being evicted, yet that is what can happen when there is trouble at an unauthorised Gypsy site. Of course, this comparison is not exact enough to found a claim under the Act.". 31 King-Ansell v. Police 2 NZLR 531 at 538 (New Zealand Court of Appeal). Despite this. London Borough of Ealing v. Race Relations Board [1972] AC 342 (House of Lords) made a distinction between nationality and "national origins ". 'z s28(4) states: "In this section 'racial group' means a group of persons defined by reference to race. colour, nationality (including citizenship) or ethnic or national origins." " Statutory Instrument 1997 No. 869. " See also Ciaran White, "Race Relations in Northern Ireland", 143(6590) Yew Law Journal (5 March 1993), 337.

35 see also Peter Cumper, "Religious Human Rights in the United Kingdom", 10 Emory International Law Review (Spring 1996), 1, at http://www.law.emory.edu/EILR/volumes/spring96/cumper.html. 36 The Advisory Committee Opinion notes with concern in its Executive Summary "the lack of compre- hensive legislation providing protection against religious discrimination". 37 section 16(1) of the Fair Employment (Northern Ireland) Act 1976 states that "treating someone less favourably on the ground of his religious belief or political opinion than the person would treat someone else in the same circumstances" constitutes discrimination. There was no provision in the Act for indirect discrimination. See also Angela Hegarty, "Examining Equality: The Fair Employment Act (NI) 1989 and its Review", 2 Web Journal of Current Legal Issues (1995), at http:// webjcli.ncl.ac.uk/articles2/hegarty2.html. 's s37 and 38. 39 s39. hansard (House of Lords), Volume 211210-13, Columns 1454-1457, at http://www.parliament.the- stationery-office.co.uk/pa/Id199900/ldhansrd/pdvn/Ids01/text/11210-l3.htm. Indeed, a Race Relations (Religious Discrimination) Bill was introduced to the House of Lords in March 2000 yet did not meet with approval. Had the Bill become law, s. 3(1) RRA 1976 would have been amended to change the definition of "racial group" to "a group of persons defined by reference to colour, race, nationality or ethnic or national origins or religion". 41 [1983] 2 AC 548 (House of Lords).

4- Ibid. " [1983] 2 AC 548, 562 (House of Lords). Although Lord Templeman also suggested similar potential guidelines for interpretation of the concept of racial group, it has been the criteria of Lord Fraser that have been applied in subsequent cases. " Wilson McLeod. "Autochthonous Language Communities and the Race Relations .-1ct', 1 Web Journal of Current Legal Issues (1998). at http://www.webjcli.ncl.ac.uk/1998¡issuel/mcleod1.html. McLeod sug- gests that "[i]n modern social and political thinking, it is awkward and untamiliar to think of, say. the Scots and the English, or for that matter, the English and the French, as different 'races', but that is essentially what the Act commands, since the term 'racial group' is defined expansively as to include 'nationality', 'national origins' and 'ethnic origins"'. ".

as Seide v. Gillette Industries Ltd [1980] IRLR 427 (Employment Appeal Tribunal). as Commission for Racial Equality v. Dutton [1989] 1 All ER 306 (Court of Appeal). 47 Crown Suppliers (Property Services Agency) Ltd v. Dawkins [1993] ICR 517 (Employment Appeal Tribunal) in which the initial decision of a lower tribunal that Rastafarians came under the scope of s. 3 RRA 1976 was overturned. See also the comment of Neil Parpworth, "Defining Ethnic Origins", 143(6598) New Law Journal (30 April 1993), 610. ae J H Walker Ltd v. Hussain [1996] IRLR 11 (Employment Appeal Tribunal); see also Kuljeet Dobe, "Muslims, Ethnicity and the Law", Consilio (2000), at http://www.spr-consilio.com/muslims.pdf. as Whilst there has been no judicial decision which ultimately determines the status of Hindus within the RRA 1976, it is recognized that Hindus "encounter legal opposition at all levels to recognition as a separate ethnic group". See Richard Jones and Welhengam Gnanapala, Ethnic Minorities in English Law (Trentham Books, 2000), 55. so See also Advisory Committee Opinion, para. 15. 51 jews have been interpreted as belonging to a clear ethnic group rather than forming a purely religious entity. This distinction was discussed extensively by the initial decision of the Court of Appeal in Mandla v. Dowell Lee [1982] 3 All ER 1108. The distinction between ethnic and religious groups remains despite the case of Seide in which it was held that being Jewish could mean being a member of a race, an ethnic origin or a religion. sz Northern Joint Police Board v. Power [1997] IRLR 610 (Employment Appeal Tribunal), in which it was also stated that it could "hardly be doubted that the same rule would apply to the Welsh". See also state report, para. 47. s' Gwynedd County Council v. Jones [1986] ICR 833 (Employment Appeal Tribunal). sa St Mary Newington United Charities v. Nolan EAT/107/96, 31 January 1997 (Employment Appeal Tribunal); London Borough of Ealing v. Race Relations Board [1972] AC 342 (House of Lords). 55 London Borough of Ealing v. Race Relations Board [1972] AC 342 (House of Lords) in which it was held that discrimination against a Polish national resident in the United Kingdom would not constitute discrimination in the sense of the Race Relations Act 1968, as the Act contained reference to "national origins" rather than "nationality". 56 see also Colin Munro, "When Racism is not Black and White", 151(6973) New Law Journal (2 March 2001), 313.

57 Ibid. sa McLeod, -Autochthonous ...", part 4. s9 Gondon Borough of Ealing t. Race Relations Board [1972] AC 342 (House of Lords). 60 abc Scotland v. Souster 019/18(16) 99. 7 December 2000 (Scottish Court of Session). Mr. Souster was successful in his claim of discrimination against BBC Scotland. 61 The Times cites MP Brian Wilson who claims in the context of Scottish/English racial discrimination that "anti-Englishness is one of the most common forms of racism in Scotland. and it must be beyond doubt that it is as abhorrent in the eyes of the law as any other form of racism". The Times (15 June 2000). bz Boyce et al. v. British .4invass Pic, East/385/97, 31 July 1997 (Employment Appeal Tribunal).

63 Northern Joint Police Board v. Power [1997] IRLR 10, 27 August 1997 ( Employment Appeal Tribunal). 64 Gwynedd County Council v. Jones EAT 554/85, 24 July 1986 (Employment Appeal Tribunal). 65 Ibid., 836. 66 Ibid. 6' McLeod, "Autochthonous ...", part 1.

Ibid. 69 Commission for Racial Equality, "The Irish in Britain" (1997), at http://www.cre.gov.uk/ publsicatalogue.html. The report details several cases of direct abuse or harassment suffered by Irish nationals within Britain. 70 s5(2), (3). 1 White, "Race Relations in Northern Ireland". For a summary of the details of sectarian discrimination, see Conflict Archive on the Internet (CAIN) Web Service, "Discrimination in Northern Ireland Chronology of Important Events", at http://cain.ulst.ac.uk/issues/discrimination/chron.htmi. Another CAIN document citing British sociological research states that "[t]here are many in the Unionist community who maintain that there was no systematic overt discrimination against Catholics and any observed differences between the two communities were the result of structural factors such as geographical concentration." CAIN, "Discrimination in Northern Ireland - A Summary", at http://cain. ulst.ac. uk/issues/ discrimina ti on/sum.h tml.

72 Commission for Racial Equality v. Dutton [1989] 2 WLR 17 (Court of Appeal). '3 0'learn and Kiely v. Punch Retail, The Times (20 August 2000) (Central London County Court). See also comment from the CRE, "Irish Travellers Covered by the Race Relations Act" (29 August 2000), at http://cre.gov.uk/media/nr arch/nr000829.html. " Scottish Parliament Equal Opportunities Committee, Session 1 (2000), Inquiry into Gypsy Travellers and Public Sector Policies. The report is available at http://www.scottish.parliament.uk/ omcial_report/cttee/equat-01/eor01 -01 -votO 1 -01 .htm. 'S Helen O'Nions, "The Marginalisation of Gypsies", 3 Web Journal of Current Legal Issues (1995), at http://www.ncl.ac.uk/ ∼ nlawwww jarticles3jonions3.html. 76 See also Advisory Committee Opinion, para. 29.

" Ibid., Executive Summary. '8 The Bill has been drafted by the Traveller Law Research Unit of Cardiff University, see at http://www.cf.ac.uk/laws/trlu. '9 Clauses 2(4), 4. so Clause 9. 8' Eur. Ct. H.R., Buckley v. The United Kingdom, judgment of 25 September 1996, Reports 1996-IV, 1271. 1. 8z Eur. Ct. H.R., Appl. 27238/95, Chapman et al. v. The United Kingdom, judgment of 18 January 2001.

83 Advisory Committee Opinion, para. 16. 84 The Cornish National Minority Report, available at http://www.biscoe.org.uk. 85 Ibid., para. 3.8.

as Hazard De6ates (House of Commons), Part 36, Column 295-296 (23 February 1999). 87 State report, para. 48. Cornwall Report, para. 6.7. 89 Ibid., para 4.4. 90 Ibid. " The Parliament and Assembly websites are located at http://www.scx3ttish.parliament.uk and http://www.wales.gov.uk respectively. 92 Northern Ireland Act 1998. 93 Northern Ireland Act 2000.

9' The Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2000, Statutory Instrument 2000 No. 1445. 9s The Assembly website is located at http://www.ni-assembly.gov.uk. 96 The Scottish Executive at http://www.scotland.gov.uk; Wales Office at http://www.ossw.wales.gov.uk; Northern Ireland Executive at http://www.northernireland.gov.uk. 97 State report, para. 273. 9$ Fifth Periodic Report by the United Kingdom, para. 9. 99 Greater London Authority Act 1998. �oo Department of Transport, Local Government and the Regions, "Your Region, Your Choice: Revitalising the English Regions" (May 2002), at http://regions.dtlr.gov.uk/governance/whitepaper/ index.html. 101 State report, paras. 82-83. 102 Ibid., para. 152.

103 Robert Dunbar "Implications of the European Charter for Regional or Minority Languages for British Linguistic Minorities", 25 European Law Renew (2000), 46. 104 Ibid., 56. 105 State report, para. 158. '°6 Ibid. 107 Ibid.., para. 168. ioe Ibid. '°' Section 11, Local Government (Miscellaneous Provisions (Northern Ireland) Order 1995, No. 759. 110 State report, para. 171. '" Ibid., paras. 99-100. 112 Ibid.., para. 147. "3 Ibid., para. 102. "a Ibid., para. 103. The website of the CCG contains further information at http://www.ccg.org.uk.

115 Scottish Parliament, the Information Centre, "Gaelic", 2 March 2000, at http://www.scottish. parliament.uk/whats_happening/research/pdf_subj_maps/smd00-02.pdf. "6 Report by the Taskforce on Public Funding of Gaelic, "Gaelic: Revitalising Gaelic a National Asset" (September 2000), at http://www.scotland.gov.uk/library3/heritage/gtfr-00.asp. '" Ibid., Introduction. 118 Further information on the work of the authority can be found at http://www.w-isles.gov.uk. "9 Report of the Consultative Steering Group on the Scottish Parliament, "Shaping Scotland's Parliament" (December 1998), paras. 53-64, at http://www.scotland.gov.uk/library/documents- w5/rscg-00.htm. 120 Standing Orders of the Scottish Parliament, Rule 1.2. 121 Ibid., Rule 7.1. 122 Education Reform Act 1988, s. 3(1)(b). 123 Welsh Language Act 1993, Headnote. 124 Ibid., s. 22(1). ). 125 State report, para. 161. 126 [1999] 1 All ER 575, [1999] Cr App Rep 32.

127 Practice direction, Supreme Court at Cardiff ( 16 October 1998), Part 1. 128 Ibid., Part 1. 129 Ibid., Part 4. 130 Ibid., Part 5. "1 Williams v. Cowell [1999] EWCA Civ 1893 (20 July 1999). 132 Ibid.., para. 54. '33 s5( 1) Welsh Language Act. See also ss5-21 for the full description of tasks related to language schemes. State report, para. 160.

134 State report, para. 162. 135 Welsh Language Board, Main Grants Programme 2002/03, Notes for Applicants, at http:// www.bwrdd-yr-iaith.org.uk/htmi/index-e.htmi. 116 Welsh Language Board "The Language and the Law", at http://www.bwrdd-yr-iaith.org.uk/ htmi/lang/s2-law-e.htmi. 137 May 2002. [38 Belfast Agreement, clause 6.3. "9 Ibid. "° Ibid., clause 6.4. 141 Ibid., clause 6.3. 142 State report, para. 156.

143 Ibid., para. 97. 'aa Ibid., paras. 193-203. 145 scottish Statutory Instrument, No. 443, s. 3. 146 Education (National Priorities) (Scotland) Order 2000, r3. 147 Standards in Scotland's School etc. Act 2000, s. 5(1), (2). 148 State report, para. 198. 'a9 Ibid., para. 203. 150 Ibid., paras. 201-203. 151 Ibid., para. 186. 152 Statutory Instrument 1999 No. 2214. 153 Explanatory Note to the Education (National Curriculum) 1 Modern Foreign Languages) (Amendment) Order 1999.

114 See also state report, para. 187-188. A separate funding programme operates in Wales. 155 Ibid.., para. 187. 156 Ibid.., para. 188.

157 Advisory Committee Opinion, para. 8.

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