Mandla (Sewa Singh) v Dowell Lee

JurisdictionUK Non-devolved
JudgeLord Fraser of Tullybelton,Lord Edmund-Davies,Lord Roskill,Lord Brandon of Oakbrook,Lord Templeman
Judgment Date24 March 1983
Judgment citation (vLex)[1983] UKHL J0324-1
Date24 March 1983
CourtHouse of Lords
Mandla and Another
(Appellants)
and
Lee and Others
(Respondents)

[1983] UKHL J0324-1

Lord Fraser of Tullybelton

Lord Edmund-Davies

Lord Roskill

Lord Brandon of Oakbrook

Lord Templeman

House of Lords

Lord Fraser of Tullybelton

My Lords,

1

The main question in this appeal is whether Sikhs are a "racial group" for the purposes of the Race Relations Act 1976 ("the 1976 Act"). For reasons that will appear, the answer to this question depends on whether they are a group defined by reference to "ethnic origins".

2

The appellants (plaintiffs) are Sikhs. The first appellant is a solicitor in Birmingham and he is the father of the second appellant. The second appellant was, at the material date, a boy of school age. The first respondent (first defendant) is the headmaster of an independent school in Birmingham called Park Grove School. The second respondent is a company which owns the school, and in which the first respondent and his wife are principal shareholders. In what follows I shall refer to the first respondent as "the respondent". In July 1978 the first appellant wished to enter his son as a pupil at Park Grove School, and he brought the boy to an interview with the respondent. The first appellant explained that he wished his son to grow up as an orthodox Sikh, and that one of the rules which he had to observe was to wear a turban. That is because the turban is regarded by Sikhs as a sign of their communal identity. At the interview, the respondent said that wearing a turban would be against the school rules which required all pupils to wear school uniform, and he did not think he could allow it, but he promised to think the matter over. A few days later he wrote to the first appellant saying that he had decided he could not relax the school rules and thus, in effect, saying that he would not accept the boy if he insisted on wearing a turban. The second appellant was then sent to another school, where he was allowed to wear a turban, and, so far as the appellants as individuals are concerned, that is the end of the story.

3

But the first appellant complained to the Commission for Racial Equality that the respondent had discriminated against him and his son on racial grounds. The Commission took up the case and they are the real appellants before your Lordships' House. The case clearly raises an important question of construction of the 1976 Act, on which the Commission wishes to have a decision, and they have undertaken, very properly, to pay the costs of the respondent in this House, whichever party succeeds in the appeal. In the county court Judge Gosling held that Sikhs were not a racial group, and therefore that there had been no discrimination contrary to the 1976 Act. The Court of Appeal (Lord Denning M.R., Oliver and Kerr L.JJ.) agreed with that view. The Commission, using the name of the appellants, now appeals to this House.

4

The main purpose of the 1976 Act is to prohibit discrimination against people on racial grounds, and more generally, to make provision with respect to relations between people of different racial groups. So much appears from the long title. The scheme of the Act, so far as is relevant to this appeal, is to define in Part I what is meant by racial discrimination and then in later Parts to prohibit such discrimination in various fields including employment, provision of goods, services and other things, and by section 17 in the field of education. There can be no doubt that, if there has been racial discrimination against the appellants in the present case, it was in the field of education, and was contrary to section 17( a) which makes it unlawful for the proprietor of an independent school to discriminate against a person in the terms on which the school offers to admit him as a pupil. The only question is whether any racial discrimination has occurred.

5

Racial discrimination is defined in section 1(1) which provides as follows:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—

  • ( a) On racial grounds he treats that other less favourably than he treats or would treat other persons; or

  • ( b) He applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but—

    • (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

    • (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it applied; and

    • (iii) which is to the detriment of that other because he cannot comply with it."

6

The type of discrimination referred to in paragraph ( a) of that subsection is generally called "direct" discrimination. When the present proceedings began in the county court, direct discrimination was alleged, but the learned judge held that there had been no direct discrimination, and his judgment on that point was not challenged in the Court of Appeal or before your Lordships' House. The appellant's case in this House was based entirely on "indirect" discrimination, that is, discrimination contrary to paragraph ( b) of subsection 1(1). When the proceedings began the appellants claimed damages, but that claim was not pursued before this House. Having regard to section 57(3) of the 1976 Act, it would have been unlikely to succeed. They now seek only a declaration that there has been unlawful discrimination against them contrary to the Act.

7

The case against the respondent under section 1(1)( b) is that he discriminated against the second appellant because he applied to him a requirement or condition (namely, the "No turban" rule) which he applied equally to pupils not of the same racial group as the second respondent (i.e. to pupils who were not Sikhs) but (i) which is such that the proportion of Sikhs who can comply with it is considerably smaller than the proportion of non-Sikhs who can comply with it and (ii) which the respondent cannot show to be justifiable irrespective of the colour, etc. of the second appellant, and (iii) which is to the detriment of the second appellant because he cannot comply with it. As I have already said, the first main question is whether the Sikhs are a racial group. If they are, then two further questions arise. Question two is what is the meaning of "can" in paragraph (i) of section 3(1), and question three is, what is the meaning of "justifiable" in paragraph (ii) of that subsection?

8

" Ethnic origins

9

Racial group is defined in section 3(1) of the Act which provides: 'Racial group' means 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".

10

It is not suggested that Sikhs are a group defined by reference to colour, race, nationality or national origins. In none of these respects are they distinguishable from many other groups, especially those living, like most Sikhs, in the Punjab. The argument turns entirely upon whether they are a group defined by " ethnic origins" It is therefore necessary to ascertain the sense in which the word "ethnic" is used in the Act of 1976. We were referred to various dictionary definitions. The Oxford English Dictionary (1897 edition) gives two meanings of "ethnic". The first is "pertaining to nations not Christian or Jewish; gentile, heathen, pagan". That clearly cannot be its meaning in the 1976 Act, because it is inconceivable that Parliament would have legislated against racial discrimination intending that the protection should not apply either to Christians or (above all) to Jews. Neither party contended that that was the relevant meaning for the present purpose. The second meaning given in the Oxford English Dictionary (1897 edition) was "pertaining to race; peculiar to a race or nation; ethnological". A slightly shorter form of that meaning (omitting "peculiar to a race or nation") was given by the Concise Oxford Dictionary in 1934 and was expressly accepted by Lord Denning M.R. as the correct meaning for the present purpose. Oliver and Kerr L.JJ. also accepted that meaning as being substantially correct, and Oliver L.J. at [1982] 3 W.L.R. 941G said that the word "ethnic" in its popular meaning involved essentially a racial concept—the concept of something with which the members of the group are born; some fixed or inherited characteristic". The respondent, who appeared on his own behalf, submitted that that was the relevant meaning of "ethnic" in the 1976 Act, and that it did not apply to Sikhs because they were essentially a religious group, and they shared their racial characteristics with other religious groups, including Hindus and Muslims, living in the Punjab.

11

My Lords, I recognise that "ethnic" conveys a flavour of race but it cannot, in my opinion, have been used in the 1976 Act in a strictly racial or biological sense. For one thing, it would be absurd to suppose that Parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics (assuming that such characteristics exist). The practical difficulties of such proof would be prohibitive, and it is clear that Parliament must have used the word in some more popular sense. For another thing, the briefest glance at the evidence in this case is enough to show that, within the human race, there are very few, if any, distinctions which are scientifically recognised as racial. I respectfully agree with the view of Lord Simon of Glaisdale in Ealing L.B.C. v. Race Relations Board [1972] A.C. 342, 362, referring to the long title of the Race...

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