Lord Fraser's judgment in Mandla
The Race Relations Act identifies two types of discrimination; direct and indirect discrimination. Direct discrimination is contrary to s 1(1)(a) of the 1976 Act and arises where an individual is treated less favourably on the basis of ‘racial grounds’ than other people are treated or would be treated. Indirect discrimination, on the other hand, takes place where an individual applies a condition of requirement to all individuals irrespective of racial group, but the condition or requirement in question is such that: (a) the proportion of persons of a particular racial group who are able to comply with its is ‘considerably smaller’ than those of individuals of a different racial group who are able to comply with it; and (b) the condition or requirement cannot be shown to be justifiable ‘irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied’; and finally, (c) it is detrimental to the individual to whom it is applied, since that individual is unable to comply with it.
Thus in order to determine whether or not discrimination has in fact taken place, much depends on the meaning of a ‘racial group’. Section 3(1) of the 1976 Act defines a ‘racial group’ as a group of persons defined by reference to colour race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.
In Mandla v Dowell Lee , the House of Lords had the occasion to consider the meaning of ‘ethnic origin’ within the context of the 1976 Act.
The meaning of ‘ethnic origin’
The principal question for the consideration of the House of Lords in Mandla was whether Sikhs amounted to a ‘racial group’ for the purposes of the Race Relations Act 1976. In order that the question could be determined, it was necessary to establish whether Sikhs were a group defined by reference to ‘ethnic origins’.. In view of the statute’s silence as to the meaning of these words, Lord Fraser of Tullybelton identified certain characteristics which a group would need to possess in order that it could be regarded as ‘a distinct community’. His Lordship noted that the word ‘ethnic’ retained a racial flavour and was associated with a common racial origin and held that to constitute an ‘ethnic group’ for the purpose of the Act there were two essential characteristics: first, a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; and secondly, a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. He mentioned other characteristics as relevant, although not essential, including a common geographical origin, a common language, and being a minority or an oppressed or a dominant group within a larger community.
His Lordships broad interpretation was strengthened by the decision of the New Zealand Court of Appeal in King-Ansell v Police . In that case, which raised the same question of construction in relation to the New Zealand Race Relations Act 1971, Richardson J remarked that:
a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock.
Thus, applying his criteria, Lord Fraser came to the conclusion that for the purposes of the 1976 Act, Sikhs did constitute a group defined by reference to ethnic origin despite the fact that ‘they are not biologically distinguishable from the other peoples living in the Punjab.’
Applying the Mandla criterion in practice
Although His Lordship’s test yielded a fair result in Mandla, it has not always provided clarity of meaning as to what constitutes a racial group or ethnic origin or yielded a fair result.
Thus in Gwynedd County Council v Jones the Employment Appeal Tribunal considered that the Welsh were ‘a nation and an ethnic group’. However in a later case another Employment Appeal Tribunal considered that the Scots were not an ethnic group, when a discrimination claim was premised on that ground. Similarly in BBC v Souster Lord Cameron's opinion was that the English and the Scots, notwithstanding separateness of history and geography, lacked the distinctiveness of community necessary to satisfy Lord Fraser's second condition, because their cultural traditions were far more broadly based and less coherent than it required.
The unsatisfactory nature of the test in Mandla may also be demonstrated by a comparison of Commission for Racial Equality v Dutton and Crown Suppliers (Property Services Agency) v Dawkins . In Dutton, relying upon the cultural/historical sense of ethnic origins outlined above, the English Court of Appeal held that gypsies are properly covered by the Race Relations Act. However, in Dawkins Rastafarians were held by the Court of Appeal to fall outside the parameters of the 1976 Act, since their common history of 60 years was considered too short and there was nothing in particular which separated them off as a distinctive ethnic group from the rest of the Afro-Caribbean community. This despite their belief in the divinity of Haile Selassie, their proud display of the black, green and gold of the Ethiopian flag, their locks, their language and their cultural tradition and most importantly, regardless of the obvious bias and discrimination against them (which constitutes the other relevant factor identified by Lord Fraser).
Mandla Essay ConclusionThe decision in Mandla is critical in providing a working definition of what constitutes a racial group or ethnic origin. However, Lord Fraser’s rendering of the concept should not be viewed as the last word on the meaning of these terms. It should be noted that the terms were left undefined by the Race Relations Act. The reason they were left imprecise is because they are intended to completely embrace every aspect of an ever-changing and worrying subject-matter. This statutory scheme should not be constrained by judicial interpretation.
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