Nandla and another (Appellants)
v.
Lee and others (Respondents)
JUDGMENT
1
Die Jovis 24° Martii 1983
Upon Report from the Appellate Committee to whom was
referred the Cause Mandla and another against Lee and
others, That the Committee had heard Counsel as well on
Monday the 28th day of February last as on Tuesday the 1st
and Wednesday the 2nd days of March last upon the Petition
and Appeal of Sewa Singh Mandla and Gurinder Singh Mandla
both of 10 St. Caroline Close, West Bromwich, West
Midlands praying that the matter of the Order set forth in
the Schedule thereto, namely an Order of Her Majesty’s
Court of Appeal of the 29th day of July 1982, might be
reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed,
varied or altered or that the Petitioners might have such
other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; as also upon
the Case of A. G. Dowell Lee and Park Grove Private School
Limited lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either
side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual
and Temporal in the Court of Parliament of Her Majesty the
Queen assembled, That the said Order of Her Majesty’s
Court of Appeal of the 29th day of July 1982 complained of
in the said Appeal be, and the same is hereby, Set Aside
save for the words “all the 1st Defendant’s costs of this
appeal and all the Defendants’ costs below (including the
costs of the hearing of the 7th March 1980 to be taxed on
Scale 4 of the County Court Scale) be taxed by a Taxing
Master and paid by the Plaintiffs to the 1st Defendant
and/or the Solicitors for the Defendants as appropriate”,
and that it be Declared that the Respondents committed an
act of unlawful discrimination against the Appellants
within the meaning of the Race Relations Act 1976: And it
is further Ordered, That the Appellants do pay or cause to
be paid to the said Respondents the Costs incurred by them
in respect of the said Appeal to this House, the amount of
such last-mentioned Costs to be certified by the Clerk of
the Parliaments if not agreed between the parties: And it
is also further Ordered, That the Cause be, and the same
is hereby, remitted back to the Birmingham County Court to
do therein as shall be just and consistent with this
Judgment.
Cler; Parliamentor
HOUSE OF LORDS
MANDLA AND ANOTHER
(APPELLANTS)
v.
LEE AND OTHERS
(RESPONDENTS)
Lord Fraser of Tullybelton
Lord Edmund-Davies
Lord Roskill
Lord Brandon of Oakbrook
Lord Templeman
Lord Fraser of Tullybelton
my lords,
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 “.
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.
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.
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
2
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.
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.”
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 discrimina-
tion against them contrary to the Act.
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
1(1)(b), and question three is, what is the meaning of “justifiable” in para-
graph (ii) of that subsection?
“Ethnic origins”
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 “.
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
3
” 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
snared their racial characteristics with other religious groups, including
Hindus and Muslims, living in the Punjab.
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] AC 342, 362, referring to the long title of the Race Relations Act
1968 (which was in terms identical with part of the long title of the 1976
Act) when he said :
” Moreover ‘ racial’ is not a term of art, either legal or, I surmise,
” scientific. I apprehend that anthropologists would dispute how far
” the word ‘ race ‘ is biologically at all relevant to the species amusingly
” called homo sapiens “.
A few lines lower down, after quoting part of section 1(1) of the Act, the
noble and learned Lord said this:
” This is rubbery and elusive language—understandably when the
” draftsman is dealing with so unprecise a concept as ‘ race ‘ in its
” popular sense and endeavouring to leave no loophole for evasion.”
I turn, therefore, to the third and wider meaning which is given in the
1972 Supplement to the Oxford English Dictionary. It is as follows:
” pertaining to or having common racial, cultural, religious, or linguistic
” characteristics, esp. designating a racial or other group within a larger
” system;”. Mr. Irvine, for the appellant, while not accepting the third
(1972) meaning as directly applicable for the present purpose, relied on it
to this extent, that it introduces a reference to cultural and other character-
istics, and is not limited to racial characteristics. The 1972 meaning is, in
my opinion, too loose and vague to be accepted as it stands. It is capable
of being read as implying that any one of the adjectives, ” racial, cultural,
” religious or linguistic ” would be enough to constitute an ethnic group.
That cannot be the sense in which “ethnic” is used in the 1976 Act, as
that Act is not concerned at all with discrimination on religious grounds.
Similarly, it cannot have been used to mean simply any ” racial or other
” group “. If that were the meaning of ” ethnic “, it would add nothing to
the word group, and would lead to a result which would be unacceptably
wide. But in seeking for the true meaning of ” ethnic ” in the statute, we
4
are not tied to the precise definition in any dictionary. The value of the
1972 definition is, in my view, that it shows that ethnic has come to be
commonly used in a sense appreciably wider than the strictly racial or
biological. That appears to me to be consistent with the ordinary experience
of those who read newspapers at the present day. In my opinion, the
word ” ethnic ” still retains a racial flavour but it is used nowadays in an
extended sense to include other characteristics which may be commonly
thought of as being associated with common racial origin.
For a group to constitute an ethnic group in the sense of the 1976 Act,
it must, in my opinion, regard itself, and be regarded by others, as a distinct
community by virtue of certain characteristics. Some of these characteristics
are essential; others are not essential but one or more of them will commonly
be found and will help to distinguish the group from the surrounding
community. The conditions which appear to me to be essential are these: —
(1)a long shared history, of which the group is conscious as distinguishing
it from other groups, and the memory of which it keeps alive; (2) a cultural
tradition of its own, including family and social customs and manners, often
but not necessarily associated with religious observance. In addition to
those two essential characteristics the following characteristics are, in my
opinion, relevant; (3) either a common geographical origin, or descent from
a small number of common ancestors; (4) a common language, not neces-
sarily peculiar to the group; (5) a common literature peculiar to the group;
(6) a common religion, different from that of neighbouring groups or from
the general community surrounding it; (7) being a minority or being an
oppressed or a dominant group within a larger community, for example
a conquered people (say, the inhabitants of England shortly after the
Norman conquest) and their conquerors might both be ethnic groups.
A group defined by reference to enough of these characteristics would be
capable of including converts, for example, persons who marry into the
group, and of excluding apostates. Provided a person who joins the group
feels himself or herself to be a member of it, and is accepted by other
members, then he is, for the purposes of the Act, a member. That appears
to be consistent with the words at the end of subsection (1) of section 3:
” References to a person’s racial group refer to any racial group
” into which he falls.”
In my opinion, it is possible for a person to fall into a particular racial
group either by birth or by adherence, and it makes no difference, so far
as the 1976 Act is concerned, by which route he finds his way into the
group. This view does not involve creating any inconsistency between
direct discrimination under paragraph (a) and indirect discrimination under
paragraph (b). A person may treat another relatively unfavourably ” on
” racial grounds ” because he regards that other as being of a particular
race, or belonging to a particular racial group, even if his belief is, from
a scientific point of view, completely erroneous.
Finally on this part of the argument, I think it is proper to mention that
the word ” ethnic ” is of Greek origin, being derived from the Greek word
” ethnos “, the basic meaning of which appears to have been simply
” a group ” not limited by reference to racial or any other distinguishing
characteristics—see Liddell & Scott’s Greek-English Lexicon (8th edition)
(Oxford 1897). I do not suggest that the meaning of the English word
in a modern statute ought to be governed by the meaning of the Greek
word from which it is derived, but the fact that the meaning of the latter
was wide avoids one possible limitation on the meaning of the English word.
My Lords, I have attempted so far to explain the reasons why, in my
opinion, the word ” ethnic ” in the 1976 Act should be construed relatively
widely, in what was referred to by Mr. Irvine as a broad, cultural/historic
sense. The conclusion at which I have arrived by construction of the Act
itself is greatly strengthened by consideration of the decision of the Court
of Appeal in New Zealand (Richmond P., Woodhouse and Richardson JJ.)
in King-Ansell v. Police [1979] 2 N.Z.L.R. 531. That case was discovered
by the industry of the appellants’ counsel, but unfortunately not until after
5
the Court of Appeal in England had decided the case now under appeal.
If it had been before the Court of Appeal it might well have affected their
decision. In that case the appellant had been convicted by a magistrate
of an offence under the New Zealand Race Relations Act 1971, the offence
consisting of publishing a pamphlet with intent to incite ill-will against
Jews, ” on the ground of their ethnic origins “. The question of law arising
on the appeal concerned the meaning to be given to the words “ethnic
“… origins of that group of persons ” in section 25(1) of the Act. The
decision of the Court of Appeal was that Jews in New Zealand did form
a group with common ethnic origins within the meaning of the Act. The
structure of the New Zealand Act differs considerably from that of the 1976
Act, but the offence created by section 25 of the New Zealand Act (viz.
inciting ill-will against any group of persons on the ground of their ” colour,
” race, or ethnic or national origins “) raises the same question of construction
as the present appeal, in a context which is identical, except that the New
Zealand Act does not mention ” nationality “, and the 1976 Act does. The
reasoning of all members of the New Zealand court was substantially similar,
and it can, I think, be sufficiently indicated by quoting the following short
passages. The first is from the judgment of Woodhouse J. at page 538,
line 39 where, after referring to the meaning given by the 1972 Supplement
to the Oxford English Dictionary, which I have already quoted, he says this:
” the distinguishing features of an ethnic group or of the ethnic
” origins of a group would usually depend upon a combination, present
” together, of characteristics of the kind indicated in the Supplement.
” In any case it would be a mistake to regard this or any other dictionary
” meaning as though it had to be imported word for word into a
” statutory definition and construed accordingly. However, subject to
” those qualifications, I think that for the purposes of construing
” the expression ‘ ethnic origins ‘ the 1972 Supplement is a helpful guide
” and I accept it.”
Richardson J. at page 542, line 51, said this:
” The real test is whether the individuals or the group regard them-
” selves and are regarded by others in the community as having a
” particular historical identity in terms of their colour or their racial,
” national or ethnic origins. That must be based on a belief shared
” by members of the group.”
And at page 543, line 24, the same learned judge said this:
“… 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. It
” is that combination which gives them an historically determined social
” identity in their own eyes and in the eyes of those outside the group.
” they have a distinct social identity based not simply on group cohesion
” and solidarity but also on their belief as to their historical antecedents.”
My Lords, that last passage sums up in a way upon which I could not
hope to improve the views which I have been endeavouring to express. It
is important that courts in English-speaking countries should, if possible,
construe the words which we are considering in the same way where they
occur in the same context, and I am happy to say that I find no difficulty
at all in agreeing with the construction favoured by the New Zealand Court
of Appeal.
There is only one respect in which that decision rests upon a basis that
is not fully applicable to the instant appeal. That appears from the long
title of the New Zealand Act which is as follows:
” An Act to affirm and promote racial equality in New Zealand and
” to implement the International Convention on the Elimination of All
” Forms of Racial Discrimination.”
6
Neither the 1976 Act nor its predecessors in the United Kingdom, the
Race Relations Acts 1965 and 1968, refer to the International Convention
on the Elimination of All Forms of Racial Discrimination. The Conven-
tion was adopted on 7th March 1966, and was signed by the United
Kingdom on 11th October 1966, subject to reservations which are not now
material. It was not ratified by the United Kingdom until 7th March 1969
—see Cmnd. 4108 (August 1969). Under the Convention the States Parties
undertook, inter alia, to prohibit racial discrimination in all its forms, and
to guarantee the rights of everyone ” without distinction as to race, colour,
or national or ethnic origin ” of equality before the law, notably in certain
” rights which were specified including education (Article 5(e)(v)). The words
which I have quoted are very close to the words found in the 1976 Act and in
its predecessors in this country, and they are certainly quite consistent with
these United Kingdom Acts having been passed in implementation of the
obligation imposed by the Convention. But it is unnecessary to rely in this
case upon any special rules of construction applicable to legislation which
gives effect to international conventions because, for the reasons already
explained, a strict or legalistic construction of the words would not, in any
event, be appropriate.
The respondent admitted, rightly in my opinion, that, if the proper
construction of the word “ethnic” in section 3 of the 1976 Act is a wide
one, on lines such as I have suggested, the Sikhs would qualify as a group
defined by ethnic origins for the purposes of the Act. It is, therefore,
unnecessary to consider in any detail the relevant characteristics of the
Sikhs. They were originally a religious community founded about the
end of the fifteenth century in the Punjab by Guru Nanak, who was born
in 1469. But the community is no longer purely religious in character.
Their present position is summarised sufficiently for present purposes in
the opinion of the learned county court judge in the following passage:
” The evidence in my judgment shows that Sikhs are a distinctive
” and self-conscious community. They have a history going back to
” the fifteenth century. They have a written language which a small
” proportion of Sikhs can read but which can be read by a much
” higher proportion of Sikhs than of Hindus. They were at one time
” politically supreme in the Punjab.”
The result is, in my opinion, that Sikhs are a group defined by a reference
to ethnic origins for the purpose of the 1976 Act, although they are not
biologically distinguishable from the other peoples living in the Punjab.
That is true whether one is considering the position before the partition of
1947, when the Sikhs lived mainly in that part of the Punjab which is now
Pakistan, or after 1947, since when most of them have moved into India.
It is, therefore, necessary to consider whether the respondent has indirectly
discriminated against the appellants in the sense of section 1(1)(6) of the Act.
That raises the two subsidiary questions I have already mentioned.
” Can comply “
It is obvious that Sikhs, like anyone else, ” can ” refrain from wearing
a turban, if ” can ” is construed literally. But if the broad cultural/historic
meaning of ethnic is the appropriate meaning of the word in the 1976 Act,
then a literal reading of the word ” can ” would deprive Sikhs and members
of other groups defined by reference to their ethnic origins of much of the
protection which Parliament evidently intended the Act to afford to them.
They ” can ” comply with almost any requirement or condition if they
are willing to give up their distinctive customs and cultural rules. On the
other hand, if ethnic means inherited or unalterable, as the Court of Appeal
thought it did, then ” can ” ought logically to be read literally. The word
” can ” is used with many shades of meaning. In the context of section
l(l)(b)(i) of the 1976 Act it must, in my opinion, have been intended by
Parliament to be read not as meaning ” can physically “, so as to indicate a
theoretical possibility, but as meaning “can in practice” or “can consis-
” tently with the customs and cultural conditions of the racial group “.
The latter meaning was attributed to the word by the Employment Appeals
7
Tribunal in Price v. Civil Service Commission [1977] 1 WLR 1417, on a
construction of the parallel provision in the Sex Discrimination Act 1975.
I agree with their construction of the word in that context. Accordingly
I am of opinion that the ” No turban ” rule was not one with which the
second appellant could, in the relevant sense, comply.
” Justifiable “
The word ” justifiable ” occurs in section l(l)(b)(ii). It raises a problem
which is, in my opinion, more difficult than the problem of the
word ” can “. But in the end I have reached a firm opinion that the
respondent has not been able to show that the ” No turban” rule was
justifiable in the relevant sense. Regarded purely from the point of view
of the respondent, it was no doubt perfectly justifiable. He explained that
he had no intention of discriminating against Sikhs. In 1978 the school
had about 300 pupils (about 75% boys and 25% girls) of whom over 200
were English, five were Sikhs, 34 Hindus, 16 Persians, six Negroes, seven
Chinese and 15 from European countries. The reasons for having a school
uniform were largely reasons of practical convenience—to minimize external
differences between races and social classes, to discourage the ” competitive
” fashions ” which he said tend to exist in a teenage community, and to
present a Christian image of the school to outsiders, including prospective
parents. The respondent explained the difficulty for a headmaster of
explaining to a non-Sikh pupil why the rules about wearing correct school
uniform were enforced against him if they were relaxed in favour of a
Sikh. In my view these reasons could not, either individually or collectively,
provide a sufficient justification for the respondent to apply a condition that
is prima facie discriminatory under the Act.
An attempted justification of the ” No turban ” rule, which requires more
serious consideration, was that the respondent sought to run a Christian
school, accepting pupils of all religions and races, and that he objected
to the turban on the ground that it was an outward manifestation of a
non-Christian faith. Indeed he regarded it as amounting to a challenge
to that faith. I have much sympathy with the respondent on this part of
the case and I would have been glad to find that the rule was justifiable
within the meaning of the statute, if I could have done so. But in my
opinion that is impossible. The onus under paragraph (ii) is on the
respondent to show that the condition which he seeks to apply is not indeed
a necessary condition, but that it is in all circumstances justifiable
” irrespective of the colour, race, nationality or ethnic or national origins
” of the person to whom it is applied;” that is to say that it is justifiable
without regard to the ethnic origins of that person. But in this case the
principal justification on which the respondent relies is that the turban
is objectionable just because it is a manifestation of the second appellant’s
ethnic origins. That is not, in my view, a justification which is admissible
under paragraph (ii). The kind of justification that might fall within that
provision would be one based on public health, as in Panesar v. The Nestles
Company Ltd. [1980] I. R.L.R. 64, where the Court of Appeal held that
a rule forbidding the wearing of beards in the respondent’s chocolate factory
was justifiable within the meaning of section l(l)(b)(ii) on hygienic grounds,
notwithstanding that the proportion of Sikhs who could (sc. conscientiously]
comply with it was considerably smaller than the proportion of non-Sikhs
who could comply with it. Again, it might be possible for the school to
show that a rule insisting upon a fixed diet, which included some dish (for
example, pork) which some racial groups could not conscientiously eat was
justifiable if the school proved that the cost of providing special meals for
the particular group would be prohibitive. Questions of that sort would
be questions of fact for the tribunal of fact, and if there was evidence on
which it could find the condition to be justifiable its finding would not be
liable to be disturbed on appeal.
But in the present case I am of opinion that the respondents have not
been able to show that the ” No turban ” rule was justifiable.
8
Final considerations
Before parting with the case I must refer to some observations by the
Court of Appeal which suggest that the conduct of the Commission for
Racial Equality in this case has been in some way unreasonable or oppressive.
Lord Denning M.R. at page 939 B merely expressed regret that the Com-
mission had taken up the case. But Oliver L.J. at 943 F—944 B used
stronger language and suggested that the machinery of the Act had been
operated against the respondent as ” an engine of oppression “. Kerr L.J.
at 950 B referred to notes of an interview between the respondent and an
official of the Commission which he said read in part “more like an
” inquisition than an interview ” and which he regarded as harassment of
the respondent.
My Lords, I must say that I regard these strictures on the Commission
and its officials as entirely unjustified. The Commission has a difficult task,
and no doubt its enquiries will be resented by some and are liable to be
regarded as objectionable and inquisitive. But the respondent in this case,
who conducted his appeal with restraint and skill, made no complaint of
his treatment at the hands of the Commission. He was specifically asked
by some of my noble and learned friends to point out any part of the notes
of his interview with the Commission’s official to which he objected, and
he said there were none and that an objection of that sort formed no part
of his case. The lady who conducted the interview on behalf of the Com-
mission gave evidence in the county court, and no suggestion was put to
her in cross-examination that she had not conducted it properly. Opinions
may legitimately differ as to the usefulness of the Commission’s activities,
but its functions have been laid down by Parliament and, in my view, the
actions of the Commission itself in this case and of its official who interviewed
the respondent on 3rd November 1978 were perfectly proper and in accord-
ance with its statutory duty.
I would allow this appeal. The appellants have agreed to pay the costs
of the respondent in this House and they do not seek to disturb the order
for costs in the lower courts in favour of the present respondent made by
the Court of Appeal.
Lord Edmund-Davies
my lords,
I have found this case unfortunate in several ways and by no means
free from difficulty. But I have had the advantage of reading in draft form
the speeches prepared by my noble and learned friends, Lord Fraser of
Tullybelton and Lord Templeman. They are in conformity with the
conclusion at which I had ultimately arrived, and I do not find it necessary
or desirable to add any observations of my own. I therefore restrict myself
to concurring that the appeal should be allowed.
Lord Roskill
my lords,
I have had the advantage of reading in draft the speeches prepared by
my noble and learned friends, Lord Fraser of Tullybelton and Lord
Templeman. For the reasons given in those speeches I too would allow
this appeal.
Lord Brandon of Oakbrook
My lords,
I have had the advantage of reading in draft the speeches prepared by my
noble and learned friends, Lord Fraser of Tullybelton and Lord Templeman.
I agree with both speeches, and for the reasons which they give I would
allow the appeal.
Lord Templeman
my lords,
The Race Relations Act 1976 outlaws discrimination in specified fields
of activities against defined racial groups. The fields of activity in which
discrimination is made a criminal offence are employment, education and
the provision of goods, facilities, services and premises. Presumably
Parliament considered that discrimination in these fields was most wide-
spread and harmful. By section 3 of the Act the racial groups against
which discrimination may not be practised are groups ” defined by reference
” to colour, race, nationality or ethnic or national origins “. Presumably
Parliament considered that the protection of these groups against discrimina-
tion was the most necessary. The Act does not outlaw discrimination
against a group of persons defined by reference to religion. Presumably
Parliament considered that the amount of discrimination on religious grounds
does not constitute a severe burden on members of religious groups. The
Act does not apply and has no reference to the situation in Northern Ireland.
The Court of Appeal thought that the Sikhs were only members of a
religion or at best members of a religion and culture. But the evidence
of the origins and history of the Sikhs which was adduced by the parties
to the present litigation disclosed that the Sikhs are more than a religion
and a culture. And in view of the history of this country since the second
world war I find it impossible to believe that Parliament intended to exclude
the Sikhs from the benefit of the Race Relations Act and to allow
discrimination to be practised against the Sikhs in those fields of activity
where, as the present case illustrates, discrimination is likely to occur.
Section 17 of the Race Relations Act 1976 makes it unlawful for the
proprietor of a school to discriminate against a person in the terms on
which the school offers to admit him to the school as a pupil. By section
1(1) “A person discriminates against another . . . if—
” . . .
” (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 is applied; …”
The respondents are only willing to admit the appellant Gurinder Singh
to Park Grove School if he complies with the school rules. Rule 22
stipulates that ” Boys’ hair must be cut so as not to touch the collar …”
As an orthodox Sikh Gurinder Singh must allow his hair to grow unshorn.
Rule 20 requires boys to wear the school uniform. The method adopted
by orthodox Sikhs for containing unshorn hair is the wearing of a turban;
a school cap is useless for that purpose. Gurinder Singh says he cannot
comply with Rules 22 or 20 because he is a Sikh and on his behalf it is
argued that Sikhs constitute a racial group, being a group of persons defined
by reference to ethnic origins. If the Sikhs do constitute a racial group
within the Race Relations Act 1976 and cannot comply with Rule 22 or 20,
whereas all non-Sikhs can comply with those rules, then the school is
guilty of discrimination against the Sikh Gurinder Singh unless the respon-
dents can show that Rules 22 and 20 are justifiable irrespective of the ethnic
origin of Gurinder Singh.
In the course of the argument attention was directed to the dictionary
definitions of the adjective ” ethnic “. But it is common ground that some
definitions constitute the Sikhs a relevant group of ethnic origin whereas
other definitions would exclude them. The true construction of the
expression ” ethnic origins ” must be deduced from the Act. A racial
10
group means a group of persons defined by reference to colour, race,
nationality or ethnic or national origins. I agree with the Court of Appeal
that in this context ethnic origins have a good deal in common with the
concept of race just as national origins have a good deal in common with
the concept of nationality. But the statutory definition of a racial group
envisages that a group defined by reference to ethnic origin may be different
from a group defined by reference to race, just as a group defined by
reference to national origins may be different from a group defined
by reference to nationality. In my opinion, for the purposes of the Race
Relations Act a group of persons defined by reference to ethnic origins
must possess some of the characteristics of a race, namely group descent,
a group of geographical origin and a group history. The evidence shows
that the Sikhs satisfy these tests. They are more than a religious sect, they
are almost a race and almost a nation. As a race, the Sikhs share a common
colour, and a common physique based on common ancestors from
that part of the Punjab which is centred on Amritsar. They fail
to qualify as a separate race because in racial origin prior to the
inception of Sikhism they cannot be distinguished from other inhabitants
of the Punjab. As a nation the Sikhs defeated the Moghuls, and
established a kingdom in the Punjab which they lost as a result of
the first and second Sikh wars; they fail to qualify as a separate
nation or as a separate nationality because their kingdom never achieved
a sufficient degree of recognition or permanence. The Sikhs qualify as a
group defined by ethnic origins because they constitute a separate and
distinct community derived from the racial characteristics I have mentioned.
They also justify the conditions enumerated by my noble and learned friend
Lord Fraser of Tullybelton. The Sikh community has accepted converts
who do not comply with those conditions. Some persons who have the
same ethnic origins as the Sikh have ceased to be members of the Sikh
community. But the Sikhs remain a group of persons forming a community
recognisable by ethnic origins within the meaning of the Act. Gurinder
Singh is a member of the Sikh community which qualifies as a racial group
for the purposes of the Act.
I agree with my noble and learned friend that Gurinder Singh cannot
comply with the school rules without becoming a victim of discrimination.
The discrimination cannot be justified by a genuine belief that the school
would provide a better system of education if it were allowed to discriminate.
I also agree that the Race Relations Board were under a duty properly to
investigate the present complaint of discrimination and that their conduct
was not oppressive.
I agree that the appeal should be allowed.
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