Muslims, Ethnicity and the Law
| Published date | 01 December 2000 |
| Date | 01 December 2000 |
| DOI | http://doi.org/10.1177/135822910000400404 |
International Journal
of
Discrimination and
the
Law, 2000,
Vol.
4,
pp.
369-386
1358-2291/2000 $10
© 2000 A B Academic Publishers. Printed
in
Great Britain
MUSLIMS, ETHNICITY AND THE LAW
KUUEET S. DOBE
Barrister
and
SUKHWINDER
S.
CHHOKAR
University
of
Wolverhampton, UK
ABSTRACT
This paper examines the meaning
of
the term 'ethnic origins' to be found in Sec-
tion 3(1)
of
(1986) with particular reference to the position
of
Muslims under the legislation. In
recent years several cases have suggested that to discriminate against someone on
the grounds
of
their being a Muslim
or
to incite hatred towards them on that
ground does not contravene either the Race Relations Act (1976)
or
the Public
of
548 are sufficiently broad to recognise British Muslims as a distinct 'ethnic group'
if
interpreted in a purposive manner and that such an interpretation is not only
desirable but necessary to combat the growing problem
of
racial discrimination and
hatred directed against Britain's Muslim population.
The Race Relations Act (1976) broadened the scope
of
previous
legislative enactments aimed at minimising the most overt manifesta-
tions
of
racial prejudice.1 The novel device
of
'indirect discrimina-
tion' was introduced into English race equality jurisprudence.
2 It
would henceforth
be
unlawful to discriminate against another in rela-
tion to prescribed social goods3 on the grounds
of
that other's mem-
bership
of
a racial group both where the membership
of
that racial
group was the reason for exclusion (direct discrimination)4 and where
the effect
of
a prima facie neutral condition for obtaining the good
was to exclude a larger proportion
of
persons from one particular
racial group in comparison with another group (indirect
discriminationV The concept
of
'racial group', a definitional element
370
in both forms
of
discrimination,
6 was defined by Section 3(1)
of
the
Act
as:
'a
group
of
persons defined by reference to colour, race, nationality7
or
ethnic or national origins
....
'8
Thus, it is unlawful to discriminate against another on the
grounds
of
that
person's
colour, race, nationality
or
ethnic or national
origins.
In
fact all
of
the
Act's
protective provisions work within the
framework
of
'racial group'. This means that any group wishing to
secure the
Act's
protection must be positively classified as a racial
group. Moreover, the criminal offence
of
incitement to racial hatred
uses this same definition
of
'racial group' .9
In
the ensuing years the concept
of
'ethnic origins', as a com-
ponent
of
'racial group', has attracted surprisingly little judicial atten-
tion given the plurality
of
cultural and religious influences which
now
bear upon the notion
of
multicultural citizenship.
10
The
definitive
pronouncement on this matter has come from the House
of
Lords,
11
where Lords Fraser and Templeman, in two similar judgements,
explained in detail their understanding
of
'ethnic origins' and 'ethnic
group'.
Since Mandla, others have sought recognition as an 'ethnic
group' including Rastafarians,12 Muslims13 and Gypsies.
14
Of
these
only the latter have met with success.
15
Legal acceptance as an 'ethnic group' is crucial
if
members
of
minority groups are to be protected from the crudest manifestations
of
nor
(1986) can be invoked to prevent discrimination
or
hate speech directed specifically at Muslims,
16 notwithstanding the
latter's greater susceptibility to unemployment, poor housing, sub-
standard education17 and racially motivated violence.18
The
irony is
twofold in that not only is a large proportion
of
the
'black'
commun-
ity conferred limited protection by statutes whose express purpose
was to provide protection for them,
19 but also they are denied this
protection when a crucial part
of
their identity is the basis
of
the dis-
crimination (or, as the case may be, incitement).
This paper will outline the distinct legal tests adumbrated by
their Lordships in Mandla and then consider their appropriateness.
WHAT
IS
AN
ETHNIC
GROUP?
The
case concerned a Sikh father's attempts at securing a place for
his son at a fee-paying school. The father was informed that his son
would not be accepted unless
he
removed his turban so as to con-
form with the school's uniform regulations.
The
father informed the
Commission for Racial Equality
of
the circumstances
of
the rejection.
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