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Colour and nationality

Race law reform

What you need to know

 

Increased protection on grounds of colour and nationality


Key points

 

  • A priority area for reform is increased protection from discrimination and harassment on the grounds of colour and nationality across the scope of the race equality legislation.
  • This change will help to clarify, strengthen, harmonise and simplify the legislation. Our recommendation is in line with changes already implemented in other parts of the United Kingdom, as well as the recommendations of international human rights monitoring bodies.



Our recommendation

We recommend increased protection from discrimination and harassment on the grounds of colour and nationality across the scope of the race equality legislation. As made clear in our 2009 Proposals for Legislative Reform , we consider that this is a priority area for reform of the race equality legislation.

Rationale for change

This change will help to clarify, strengthen, harmonise and simplify the legislation.

Currently there are ‘two tier’ levels of protection against discrimination and harassment within the race equality legislation.  In particular, there is less protection against discrimination and harassment on the grounds of colour and nationality than on the other racial grounds protected under the legislation; namely race, ethnic or national origins.

This ‘two tier’ level of protection came about following the introduction in Northern Ireland of legislation to implement the Race Directive in 2003. As the Race Directive only applied to the grounds of race, ethnic and national origin, the Regulations introduced in order to give effect to the Race Directive, did not amend the provisions in the Race Relations (NI) Order 1997 as regards the grounds of colour and nationality.

The main impact of this ‘two tier’ level of protection is summarised below:
  • The statutory definition of harassment which applies to the grounds of race, ethnic or national origins, in a wide range of areas (including employment and the provision of goods and services), does not extend to the grounds of colour and nationality. As a result, it is more difficult for individuals to bring complaints if they are subjected to offensive or degrading comments on the grounds of their colour or nationality.
  • Whilst the race legislation prohibits public bodies from discriminating on the grounds of race, ethnic or national origins when exercising their public functions, this prohibition does not extend to the grounds of colour or nationality.
  • Although the race legislation prohibits discrimination against office holders, such as chairpersons or board members of non-departmental public bodies, this prohibition does not exist on the grounds of colour and nationality.
  • A more restrictive definition of indirect discrimination applies to the grounds of colour and nationality than on the other racial grounds. This means it is more difficult for claimants alleging unlawful discrimination on the grounds of colour and nationality to successfully prove their case. Effective protection against indirect discrimination is particularly important in challenging systemic or institutional racism; where policies and practices of an employer, service provider or public authority may, without justification, have a particular adverse impact on BME individuals.
  • There are also differences in relation to the exceptions under the race equality legislation, depending on the racial ground in question. For example, the exceptions relating to employment for the purposes of a private household and genuine occupational requirement only apply to the grounds of colour and nationality; and not the grounds of race, ethnic or national origins.


These anomalies have led to difficulties and confusion for those seeking to understand their responsibilities and to exercise their rights under the legislation, as well as resulting in reduced protection on the grounds of colour and nationality. 

Further, our recommendation is in line with changes already implemented in other parts of the United Kingdom, as well as the recommendations of international human rights monitoring bodies.

In particular, changes to address this gap in protection have already been implemented in Great Britain under the Equality Act 2010 .

It is of note that, in the case of Abbey National PLC v Chagger , the Employment Appeal Tribunal in Great Britain was of the view that the Race Directive was intended to apply to discrimination on the ground of colour, as such discrimination is in practice necessarily an aspect or manifestation of discrimination based on racial or ethnic origins.

Although this is a welcome clarification as regards protection on the ground of colour, there is still a need to amend the race equality legislation in order to ensure equal levels of protection against discrimination and harassment across all racial grounds. As noted above, following the case of Abbey National PLC v Chagger, the legislation in Great Britain was changed to clarify the law in this area.

Further, our recommendation is in line with the recommendation of the UN Committee on the Elimination of Racial Discrimination. In particular, in 2003, it recommended that the UK Government extend the amending Regulations that implemented the Race Directive to cover discrimination on the grounds of colour and nationality. It was concerned that a failure to do so would result in inconsistencies in discrimination laws and differential levels of protection and create difficulties for the general public as well as law enforcement agencies.

Finally, this legislative gap and the need for action to address this, has already been recognised by OFMDFM. In particular, in its consultation on single equality legislation in 2004 , OFMDFM indicated that it ‘intended to rectify this gap’ in the race equality legislation.

In addition, in OFMDFM’s Racial Equality Strategy for Northern Ireland 2005-2010  it was recognised that the Regulations introduced to give effect to the EU Race Directive did not extend to all racial categories; specifically, they did not cover colour and nationality.  There was a commitment by the Government to ‘explore legislative options to rectify this anomaly as soon as possible’.   However, to date no further action has been taken to address this anomaly.

 

The impact of this ‘two tier’ level of protection - summarised

The statutory definition of harassment which applies to the grounds of race, ethnic or national origins in a wide range of areas (including employment and the provision of goods and services) does not extend to the grounds of colour and nationality. As a result, it is more difficult for individuals to bring complaints if they are subjected to offensive or degrading comments on the grounds of their colour or nationality.

Whilst the race legislation prohibits public bodies from discriminating on the grounds of race, ethnic or national origins when exercising their public functions, this prohibition does not extend to the grounds of colour or nationality.

Although the race legislation prohibits discrimination against office holders, such as chairpersons or board members of non-departmental public bodies, this prohibition does not exist on the grounds of colour and nationality.

A more restrictive definition of indirect discrimination applies to the grounds of colour and nationality than on the other racial grounds. This means it is more difficult for claimants alleging unlawful discrimination on the grounds of colour and nationality to successfully prove their case. Effective protection against indirect discrimination is particularly important in challenging systemic or institutional racism; where policies and practices of an employer, service provider or public authority may, without justification, have a particular adverse impact on Black and Minority Ethnic individuals.

There are also differences in relation to the exceptions under the race equality legislation, depending on the racial ground in question. For example, the exceptions relating to employment for the purposes of a private household and genuine occupational requirement only apply to the grounds of colour and nationality; and not the grounds of race, ethnic or national origins.

In its consultation on single equality legislation in 2004 , OFMDFM indicated that it ‘intended to rectify this gap’ in the race equality legislation.

In addition, in OFMDFM’s Racial Equality Strategy for Northern Ireland 2005-2010 it was recognised that the Regulations introduced to give effect to the EU Race Directive did not extend to all racial categories, specifically, they did not cover colour and nationality.  There was a commitment by the Government to ‘explore legislative options to rectify this anomaly as soon as possible’.   However, to date no further action has been taken to address this anomaly.

Changes to address this gap in protection have already been implemented in Great Britain under the Equality Act 2010.

It is of note that, in the case of Abbey National PLC v Chagger, the Employment Appeal Tribunal in Great Britain was of the view that the Race Directive was intended to apply to discrimination on the ground of colour, as such discrimination is in practice necessarily an aspect or manifestation of discrimination based on racial or ethnic origins. Although this is a welcome clarification as regards protection on the ground of colour, there is still a need to amend the race equality legislation in order to ensure equal levels of protection against discrimination and harassment across all racial grounds protected. As noted above, following the case of Abbey National PLC v Chagger, the legislation in Great Britain was changed to clarify the law in this area. Finally, our recommendation is also in line with the recommendation of the UN Committee on the Elimination of Racial Discrimination.

In particular, in 2003, it recommended that the UK Government extending the amending regulations that implemented the Race Directive to cover discrimination on the grounds of colour and nationality. It was concerned that a failure to do so would result in inconsistencies in discrimination laws and differential levels of protection and create difficulties for the general public as well as law enforcement agencies.
 
 
 
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