the race relations order what weve got and what we want

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					The Race Relations Order - what we‟ve got and what we
want

Barry Fitzpatrick 1
31 October 2007

1 Introduction
The purpose of this paper is to examine deficiencies in the Race Relations
Order (RRO) and how these deficiencies could be rectified. First, some
deficiencies specific to the RRO will be considered. Secondly, we shall
consider some provisions in which the RRO is arguably superior to other
provisions and, briefly, how these superior provisions might be developed.
There is a range of further deficiencies which are general across the equality
grounds but these are better considered in the context of a single equality
bill.

2 Deficiencies specific to the RRO
There are two serious problems with the RRO as amended. As we shall see, in
many ways the RRO is superior to other regimes, particularly in fields outside
employment. This is because the Race Directive applies across nearly all
aspects of the RRO while the Framework Directive, in relation to age,
disability, religion or belief and sexual orientation, only applies to employment
and training (including institutions of further and higher education). However,
the RRO has not been amended in relation to discrimination on grounds of
‗colour‘ and ‗nationality‘ and it contains a restricted duty on public authorities
not to discriminate in performance of their public functions.

2.1 No amendments in relation to „colour‟ and „nationality‟
It has always been unfortunate that OFMDFM followed the Whitehall example
of transposing the EU Directives through regulations made under the
European Communities Act 1973 (ECA). It would have been much better to
use Orders in Council (or Assembly Bills) to ensure that changes were made
in a harmonised and coherent fashion. ECA Regulations can only be used to
transpose ‗Community obligations‘ and ‗related matters‘. The view grew up in
Whitehall that they could only apply the bare minimum of the Directives.

The Race Directive applies to equal treatment on grounds of racial and ethnic
origins. The view was taken that the RRO should be amended in relation to
discrimination on these two grounds and also on grounds of ‗national origins‘
which were considered to be indistinguishable from racial and ethnic origins.
Admittedly, the Race Directive explicitly excludes ‗nationality‘ questions from
its scope but both ‗nationality‘ and ‗colour‘ are integral ‗racial‘ grounds in the
RRO. To only amend the RRO in relation to 3 of the pre-existing ‗racial
grounds‘ and not the other two creates 2 sets of laws for different RRO
grounds and bizarre issues if you are arguing, say, ‗national origins‘ and


1
    Barry Fitzpatrick Consulting (www.barryfitzpatrickconsulting.co.uk).


rro071031                                                                        1
‗nationality‘ in the same case. For example, harassment applies to a ‗national
origins‘ case but not a ‗nationality‘ case. The burden of proof shifts to the
employer/provider of services in an ‗ethnic origin‘ case but not a case based
on ‗colour‘.

In Northern Ireland OFMDFM was confronted with the same dilemma in
relation to amendments to the Fair Employment and Treatment (NI) Order
1998, which covers both discrimination on grounds of ‗religious belief‘ and
‗political opinion‘. The Framework Directive covers equal treatment on
grounds of ‗religion or belief‘ which is understood to cover some
‗philosophical‘ beliefs but not political beliefs. However OFMDFM
understandably amended FETO to cover both ‗religious belief‘ and ‗political
opinion‘. Otherwise FETO would have been split into two sets of laws, one for
‗religious belief‘ cases and one for ‗political opinion‘ cases.

There has always been an intention to bring the ‗nationality‘ and ‗colour‘
provisions of the RRO into line with the rest of the RRO but on a ‗wait until
the SEA‘ basis (for example in OFMDFM‘s Green Paper on the SEA and also in
Discrimination Law Review in GB). Nonetheless, this untenable distinction has
now been in the RRO for 4 years of its 10 year existence.

It is essential that the RRO includes provisions on discrimination
and harassment on grounds of „colour‟ and „nationality‟ across its
scope.

2.2 Discrimination in performance of public functions
A second deficiency in the transposition of the Race Directive concerns a
restricted duty on public authorities not to discriminate in performance of
public functions. Once again, the RRO was the victim of minimalism in
transposition. One of the most destructive decisions in UK discrimination law
was a case in the House of Lords in R v Entry Clearance Officer ex parte
Amin ([1983] 2 AC 818). Ms Amin was challenging a special voucher scheme
whereby Commonwealth citizens could apply to come to Britain so long as
they were ‗head of the household‘. She complained that this was indirectly
discriminatory on grounds of sex. Instead of treating this case specifically in
relation to immigration matters, their Lordships (by 3-2) concluded that she
could not claim that she was in receipt of goods, facilities and services (GFS)
under the Sex Discrimination Act 1975 because those provisions only applied
to provision of public services if they could also be provided by the private
sector.

The extent of this ‗over-inclusive‘ exception to GFS became fully apparent
during the Macpherson Inquiry into the murder of Stephen Lawrence.
Because of Amin, the police were not subject to the Race Relations Act 1976
(RRA) during their investigations. Although the courts have gone to




rro071031                                                                         2
considerable lengths to minimise the harsh impact of Amin in relation to GFS, 2
it was still felt necessary to introduce section 19B of the RRA through the
Race Relations (Amendment) Act 2000. 3 It is more widely appreciated that
the 2000 Act introduced the race equality duty on public authorities in GB,
modelled to some extent on our section 75. But section 19B opens out
policing and a range of other ‗purely public‘ functions, such as Customs and
Excise, local authority officers, tax inspectors, trading standards officers,
Health and Safety Executive, prison administration, the Probation Service,
immigration issues (subject to exceptions), granting of licences and
determinations of mental health authorities. 4

Originally it appears that OFMDFM did not intend to introduce an equivalent
to section 19B into the RRO. It became apparent that certain aspects of the
Race Directive would require some movement on this front. However, instead
of introducing section 19B into the RRO, we got a minimalist version of
section 19B, perceived as sufficient to satisfy the Directive but still a long way
short of the GB duty. Article 20A of the RRO, as amended by the Race
Relations Order (Amendment) Regulations (Northern Ireland) 2003,
provides:-
―20A.– (1) It is unlawful for a public authority -
(a) to discriminate against a person on the grounds of race or ethnic or
national origins, or
(b) to subject a person to harassment in the course of carrying out any
functions of the authority which consist of the provision of:
(i) any form of social security;
(ii) healthcare;
(iii) any other form of social protection, or
(iv) any form of social advantage,
which does not fall within Article 21 [provision of GFS] .‖5

We can see that some of the contentious areas of ‗purely public‘ functions
may be caught by Article 20A, eg the determinations of mental health
authorities. So also, ‗social advantages‘ were first mentioned in a 1968

2
  In Farah v Metropolitan Police Commissioner [1998] QB 65 (CA), the Court of
Appeal accepted that a failure to react to F‘s emergency telephone call, failure
tominvetigate her account at the scene and failure to afford her protection could all
come outside Amin and therefore be GFS. So also, in another case prior to section
19B, Brooks v Metropolitan Police Commissioner [2002] EWCA Civ 407 (brought by
Stephen lawrence‘s friend in relation to the attack upon them), the Court of Appeal
accepted that investigation of the crime could fall outside Amin and inside section 20
RRA (Article 21 RRO).
3
  Section 19B provides:- ―(1) It is unlawful for a public authority in carrying out any
functions of the authority to do any act which constitutes discrimination.‖
4
  See McColgan A (ed), Discrimination Law Handbook (2nd ed), London: LAG, 2006,
pp 556-7.
5
  The role of harassment is discussed further below. However we should note that, in
the RRA, harassment provisions are also only applied to these categories rather than
the full scope of public functions.


rro071031                                                                             3
Regulation on free movement of workers, and has been widely interpreted by
the European Court of Justice. Nonetheless, a range of enforcement and
regulatory functions are perceived to be excluded by this definition, including
policing, compulsory detention of mental patients, prison regimes, planning
control and licensing, clubs and associations. 6

So also it is difficult to see how immigration cases can be caught by Article
20A and how Amin can be avoided in relation to GFS. Admittedly Article 20C
provides that Article 20A does not cover discrimination in performance of
immigration functions on grounds of national or ethnic origins (and by
implication does allow a case on grounds of race) but this is based on the GB
wording. It is far from clear that Article 20A covers immigration in the first
place. We have recently seen the Belfast Telegraph headline in Frank
Kapako‘s case, ‗‗I was jailed in Ulster because I was black‘. 7 First, we should
remember that Mr Kapako could not take an Article 20A case purely on
grounds of his colour. Of course, he could reconstruct his case as ‗race, ethic
or national origins‘ but the fact remained that he considered was on grounds
of this colour. Secondly, although he argued both under the RRO and on
grounds of false imprisonment, it was only on the latter ground that the
Immigration Service settled his case. It must be doubted that they would
admit that these immigration functions are covered by Article 20A (or Article
21, however it has been interpreted post-Amin). 8

It seems indefensible, nearly a decade after the Lawrence Inquiry, that core
public functions appear to be caught in a ‗gapping hole‘ between GFS, even
as reinterpreted after Amin, and this limited ‗performance of public functions‘.
Great Britain has enjoyed this anti-discrimination protection since 2000. Yet
again as a result of minimalism towards transposition of the Race Directive,
we in Northern Ireland have had this restrictive provision for 4 years. 9

An added difficulty is that Article 20A only applies if Article 21 (provision of
GFS) does not. The implications of this is that we must first examine the GFS
provision, with all the post-Amin interpretations of it, in order to determine
whether Article 21 applies before we can consider whether Article 20A
applies. This is surely the wrong way round. Macpherson was supposed to ‗kill
off‘ Amin and yet it is being resuscitated. Article 21 should only come into
play when the duty, which was meant to put an end to Amin, does not apply.
There is no such restriction in the Equality Act 2006 in relation to
6
    Discrimination Law Handbook, p 252.
7
    Belfast Telegraph, 29 October 2007.
8
  It might also be mentioned that there must be uncertainty whether the setting of
national curriculum can be caught by Article 20A or Article 21. Paradoxically it may
be that some parts of RE curriculum are set outside the CCEA or the department of
Education. Subject to this intriguing possibility, it would appear that curriculum-
setting is a purely public function but also not within Article 20A, subject to possible
arguments on the meaning of ‗social advantages‘ in that Article.
9
  It is also disturbing harassment provisions, both in NI and GB, do not cover these
areas in which allegations of abuse are highly likely.


rro071031                                                                                  4
discrimination on grounds of religious belief in performance of public functions
and that seems to be the more sensible way to deal with the dividing line
between the two.

What makes these limitations more surprising is that there has been a steady
extension of the section 20A template across other grounds in GB. The duty
was applied to the Disability Discrimination Act 1995 in 2005 and then to sex
and religious discrimination in the Equality Act 2006 and then to sexual
orientation in the Equality Act (Sexual Orientation) Regulations 2007. Even
more surprising (although welcome) is that the DDA in NI now also includes a
duty not to discriminate in performance of public functions. So the DDA is
wider than the RRO on this account. Paradoxically the Equality Act (Sexual
Orientation) Regulations (NI) 2007 do include the restricted ‗Article 20A‘ duty
not to discriminate but this is because the SO GFS Regulations are modelled
on the RRO as amended, not the GB SO GFS Regulations, enacted under the
Equality Act 2006.

Neither FETO nor the SDO have been amended, although section 76 of the
Northern Ireland Act 1998 does prohibit direct discrimination in performance
of public functions. This provision goes back to the 1970s but NI courts have
noticed the contrast between the ‗due regard‘ nature of section 75 and the
anti-discrimination nature of section 76. I would prefer to treat these
provisions as complementary in that the duty not to discriminate in
performance of public functions gives an actionable basis to challenge direct
and indirect discrimination which may emerge from screening and equality
impact assessment processes. In GB, the non-discrimination duty now applies
to all 3 grounds in which GB has a statutory equality duty, ie race, disability
and gender, and has been extended to religion and sexual orientation. And
yet, we have a patchwork of non-discrimination duties on public authorities in
NI. Unlike GB, we have not been able to move beyond the minimalism of EU
transposition (except in relation to the DDA (NI) Order 2005 which was not
based on ECA Regulations).

Once again, we are back in the ‗wait until the SEA‘ syndrome but, as with
discrimination and harassment on grounds of colour and nationality, this is a
deficiency in the RRO which should not wait.

It is essential that the RRO includes provisions on discrimination
and harassment across the performance of the full scope of public
functions.

3 Superior provisions in the RRO

This is not an exhaustive consideration of superior provisions within the RRO.
Two can be identified for the purposes of this paper. First, harassment
provisions apply across virtually the full scope of the RRO and not just in
employment. However recent judgments can be seen to both broaden and
potentially narrow the scope of the harassment provisions. Secondly, local


rro071031                                                                       5
district councils in NI are subject to a ‗due regard‘ duty in relation to non-
discrimination but also equality of opportunity and good relations.

3.1 Harassment provisions in the RRO
Subject to the fact that the harassment provisions bizarrely only apply to
unwelcome conduct on grounds of racial, ethnic and national origins (and not
colour or nationality, see 2.1 above), their ‗superiority‘ lies in the fact that
they apply across virtually the full scope of the RRO. This is because the Race
Directive covers issues such as GFS, education, housing etc and hence the
Directive‘s definition of harassment must apply across most of the RRO.
Article 4A(1) provides:-
―A person (―A‖) subjects another person (―B‖) to harassment in any
circumstances relevant for the purposes of any provision referred to in Article
3(1B) where, on grounds of race or ethnic or national origins, A engages in
unwanted conduct which has the purpose or effect of -
(a) violating B‘s dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive
environment for B.‖

And yet the RRO definition of harassment is in urgent need of reform in light
of a successful judicial review application by the EOCGB against the DTI 10 on
the harassment definition in the SDA after the Revised Equal Treatment
Directive 2002 was transposed into the SDA in 2005. Many of us know that
the RRO definition, repeated in all the other equality statutes, at least in
relation to employment and training, is already ‗stronger‘ than the Directive‘s
definition in two regards. First, the EU definition requires both a ‗violation of
dignity‘ and the creation of an ‗an intimidating, hostile, degrading, humiliating
or offensive environment‘. The RRO requires either of these conditions for
harassment to have occurred. Secondly, the test for what we can call ‗effects-
based‘ harassment, ie unwelcome conduct which satisfies these conditions but
was not for the ‗purpose‘ of doing so, introduces, depending on your point of
view, either a subjective or an objective element into the definition. 11

These developments in the GB&NI definition of harassment were based on
the non-regression principle in Article 6.2 of the Race Directive. 12 Indeed, in
the EOC case, the Administrative Court confirmed that GB&NI harassment law

10
     EOC v Secretary of State for Trade and Industry [2007] EWHC 483 (Admin)(Burton
J)(judgment of 12 March 2007 (on the GB equivalent of the Employment Equality
(Sex Discrimination) Regulations (NI) 2005).
11
   Article 4A(2), RRO provides, ―Conduct shall be regarded as having the effect
specified in subparagraphs (a) and (b) of paragraph (1) only if, having regard to all
the circumstances, including, in particular, the perception of B, it should reasonably
be considered as having that effect.‖
12
   Article 6.2 provides, ―The implementation of this Directive shall under no
circumstances constitute grounds for a reduction in the level of protection against
discrimination already afforded by Member States in the fields covered by this
Directive.‖



rro071031                                                                                6
had always included both objective and subjective elements and hence the
SDA equivalent of Article 4A of the RRO was not contrary to the Directive. I
mention this also because the NI High Court in the judicial review on the SO
GFS Regulations 13 seemed to be of the impression that the harassment
definition in those Regulations, which of course are word-for-word the same
as in the RRO, was ‗too widely drafted‘.

However, the EOC judicial review has established that even this ‗wider‘
definition does not satisfy one crucial aspect of the Race Directive definition.
Article 2.3 of the Directive provides:-
―Harassment shall be deemed to be discrimination within the meaning of
paragraph 1, when an unwanted conduct related to racial or ethnic origin
takes place with the purpose or effect of violating the dignity of a person and
of creating an intimidating, hostile, degrading, humiliating or offensive
environment. In this context, the concept of harassment may be defined in
accordance with the national laws and practice of the Member States.‖
(emphasis added).

Mr Justice Burton has concluded, and the Government does not now contest,
that ‗on grounds of‘ does not equate to ‗related to‘. We know that already as
there is a significant difference between ‗direct disability discrimination‘ which
must be ‗on grounds of the disabled person‘s disability‘ and ‗disability-related
discrimination‘ which concerns a ‗reason related to a disabled person‘s
disability‘. The real significance of this ruling for the RRO brings us back to
one of the most notorious discrimination cases, often known as the ‗Bernard
Manning case‘. 14 In that case, Manning made sexist and racist comments
about 2 waitresses at an event at the hotel. Although Manning was not an
employee of the hotel, the EAT managed to find the hotel liable for Manning‘s
sexist and racist behaviour. This ‗vicarious liability‘ for the anticipatable acts of
third parties appeared ‗good law‘ until the House of Lords decision in Pearce v
                                     15
Governors of Mayfield School.

This case, along with MacDonald v Ministry of Defence, is better known as the
case in which the courts finally decided that discrimination on grounds of
sexual orientation could not be equated with discrimination on grounds of
sex. However, a side issue in Pearce was whether the school could be liable
for the taunting of a lesbian teacher by her pupils. The House of Lords
concluded that De Vere Hotel was wrongly decided as the hotel, or in this
case the school, could only be liable if, ‗on grounds of sex or race‘, it had
discriminated against the applicant. Hence it might be possible to construct a
direct discrimination case if a complaint of racist harassment was taken less
seriously than a complaint of sexist harassment. But the school could be
liable, and the hotel ought not to have been liable in Manning‘s case, for the

13
     An application for judicial review by the Christian Institute and others , [2007]
NIQB 66 (Weatherup J (judgment of 11 September 2007)
14
   Burton v De Vere Hotels Ltd [1997] ICR 1 (EAT).
15
   Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937 (HL(E)).


rro071031                                                                                7
acts of third parties who were not their employees. Of course, De Vere Hotels
and Pearce were decided as direct discrimination cases before the
introduction of the harassment provision and Pearce remains ‗good law‘ on
such cases.

What is now clear from the EOC judgment is that what Burton J describes as
an ‗associative‘ approach, ie ‗related to‘, as opposed to a ‗causative approach‘,
ie ‗on grounds of‘, will catch Manning type situations. It is worth quoting the
judgment, at §41:-
―If, by reference to the disapproved authority of De Vere Hotels, it could have
been shown that the employers knew of continuing and/or regular
objectionable conduct by Mr Manning, and failed to take any steps to prevent
it, it could be said that they were thereby themselves indulging in unwanted
conduct (including omission) in relation to sex, with the consequent upsetting
effect on the claimant waitress. However, it would seem very difficult to be
able to say that such knowing failure on their part would amount to unwanted
conduct by the employers on the ground of her sex. However, the result of
adopting the associative rather than causative approach to harassment …
would resolve the problem.‖

This judgment has great significance, first in employment, where workers
subject to foreseeable racist harassment by clients, students, patients and
other third parties will have an action against their employers. But of course
the harassment definition applies to GFS, education, housing etc. So a school
could be liable for foreseeable racist harassment of a BAME student by
another student, as could providers of services, landlords, housing
associations, hospitals, care homes etc. As you might imagine, the failure to
apply the harassment definition to colour and nationality, and to some public
functions, takes on even greater significance in these circumstances.

What is clear from both the Discrimination Law Review in GB, and indeed
OFMDFM‘s consultation on amendments to the SDO to transpose the Gender
Goods and Services Directive 2004, 16 is that Government is obliged to rectify
this ‗deficiency‘ in the harassment definition asap. No ‗let‘s wait for the SEA‘
here. This leads to two further thoughts. First, if we need equality legislation
‗across the board‘ to deal with deficiencies in the harassment definition, are
there not other deficiencies in our equality statutes, including the RRO, which
could be addressed? Secondly, should the opportunity not be taken to use the
RRO as a template to tackle other forms of harassment in GFS, education,
housing etc?

Harassment definitions are already being introduced in the SDO in cases of
GFS in order to transpose the Gender Goods and Services Directive 2004.
There is clearly a need to deal effectively with harassment of disabled people
in GFS etc. Despite controversy in GB on sectarian harassment, and deep
controversy in NI on homophobic harassment, outside employment and

16
     And the judgment itself.


rro071031                                                                        8
training, we should not have to ‗wait for the SEA‘ to find a form of words
which catches the more abusive forms of harassment. For example, it might
be despite the EU definition, that in some GFS situations, the legislation
should make unlawful the creation of an ‗intimidating, degrading or
humiliating‘ but not necessarily a ‗hostile‘ or ‗offensive‘ environment.

So also, even though a reformed harassment definition in relation to GFS in
the RRO, might well catch harassment of fee-paying guests of the
‗performance‘ in a Manning type case, is it really ‗unwelcome conduct‘ if I pay
to be offended? But the waitresses in the Manning case were not in what
might be called an ‗open‘ environment‘ in which they had willingly paid to
attend. They were in a ‗closed environment‘ working under a contract of
employment. My point is that there are ‗closed environments‘ other than the
workplace where citizens have a continuing relationship with those around
them, most obviously, schools, housing, care homes, prisons etc. In my view,
harassment is much more serious in these environments and we should be
loath to weaken our protection from harassment in these situations. In any
event, the RRO is backed up by the Race Directive in these circumstances.
But it seems that harassment provisions have had a ‗bad press‘ recently and
we should be doing all we can to re-establish their legitimacy and
effectiveness.

We still need a reformed harassment definition across the RRO and
serious consideration of an effective approach to harassment
outside employment and training across all the equality grounds.

3.2 Duty on district councils

Article 67 RRO provides:-
―Without prejudice to its obligation to comply with any other provision of this
Order, it shall be the duty of a district council to make appropriate
arrangements with a view to securing that its various functions are carried out
with due regard to the need—
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity, and good relations, between persons
of different racial groups.‖

As we prepare for the implementation of the Review of Public Administration,
it is appropriate to consider whether this duty on district councils can be
reformed and made more effective.

Article 67 differs from section 75 and Schedule 9 in three significant ways.
First, as with the GB general equality duties, ―due regard [must be shown] to
the need (a) to eliminate unlawful racial discrimination‖. Secondly, in
comparison with section 75(2) ―due regard‖ must also be shown to promote
good relations as much as equality of opportunity. Thirdly, whereas it is only
in Schedule 9 and the specific GB duties that particular arrangements are
outlined, Article 67 makes it part of the general duty ―to make appropriate


rro071031                                                                        9
arrangements with a view to securing that its various functions are carried out
with due regard …‖

One amendment to Article 67 would be to refer specifically to harassment as
well as unlawful discrimination. This would be consistent with other
amendments to the RRO in light of EU implementation and would mirror one
of the general disability duties. A second relatively straightforward
amendment to Article 67 could allow for articulation of these ―appropriate
arrangements‖, already set out in the general Article 67 duty. For example,
the disability duty provides for an action plan to achieve the general duty. The
specific gender duty includes a more focussed approach towards gender
specific policies with an emphasis on goals and outcomes. Given the
application of Article 67 to the elimination of unlawful discrimination in Article
67(a) and the equal weight on the good relations duty in Article 67(b), action
plans could have a greater emphasis on programmes to eliminate existing
discrimination (and harassment) and could also have a stronger good
relations focus.

Further articulation of the ―appropriate arrangements‖ could be made based
either on the Schedule 9 or GB specific duties models. In particular,
consultation with ethnic minorities could be included.

Duties other than in relation to ―appropriate arrangements‖ could be
considered in light of the GB duties. Local authorities could be placed under a
duty to BAMEs as in the GB specific race duties. So also the GB disability
duties could be adapted, most obviously the need to promote positive
attitudes towards disabled persons and the need to encourage participation
by disabled persons in public life.

It is proposed that Article 67 should be considered for reform. It
may be possible already to enforce Article 67 in relation to systemic
discrimination by way of judicial review. So also a total failure to
“make appropriate arrangements” may be justiciable in the courts

Article 67 could be amended to include „harassment‟ and to clarify
these “appropriate arrangements”, particularly in relation to
focussed action plans based on the specific gender duty and
including provisions on consultation of BME organisations. The ECNI
(and/or CRC) could be given a role in approving „race plans‟ under
Article 67.

It might be possible to add additional specific duties based on GB
models.

Compliance could be through the ECNI‟s existing investigatory
procedures or a system of ECNI compliance orders on lines of the
CEHR‟s powers under the Equality Act 2006.



rro071031                                                                      10