Mandla v Dowell Lee - Lecture notes 1 PDF

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Mandla v Dowell Lee [1983] 2 AC 548

Plaintiff father and son were Sikhs. Wore turbans over their unshorn hair. First defendant was the headmaster of the school which was owned by the second defendant and they refused to admit the son as a pupil because plaintiffs would not agree to the on cutting his hair and ceasing to wear a turban to comply with the school’s uniform rules. Plaintiffs brought an action for declaration that the defendants had committed an act of unlawful discrimination against the plaintiffs within meaning of the Race Relations Act 1976. The judge dismissed the actions. He said there had been no discrimination contrary to section 1 (1) (b) of the Act as Sikhs were not a racial group. The Court of Appeal dismissed the plaintiffs appeal. Is the Sikh community a racial group? In a) the narrow racial view b) the broad cultural view. Appellants view b) as the correct submission. CoA favoured the narrow racial view in that ‘ethnic’ meant pertaining or peculiar to race. Lord Denning said “why are the Jews given as the best known examples as ethnic grouping…What distinguishes them from non-Jews”. In his view it is a racial characteristic. Contention that Sikhs have ‘ethnic origins’ rests on i) ‘ethnic origins’ should be given independent meaning and value which should not be racial and ii) the broad definition given to ‘ethnic’ in the dictionary. King-Ansell v Police 1979 2 N.Z.L.R 531 held that Jews have a common ethnic origin. (a New Zealand Case). The purpose of the Race Relations Act was to implement the provision of the International Convention on the Elimination of All forms of Racial Discrimination. The Act should be given a broad and purposive construction in accordance with the intentions of the convention. The CoA construed the meaning of ethnic too narrowly and erred using the 1934 definition of ethnic in favour of the modern meaning and usage in 1972. Ealing London Borough Council v Race Relations Board 1972 AC 342 was directly relevant only to nationality and national origins. Which suggests a connection subsisting at the time of birth between an individual and a group of people. Sikh parents who have a child, that child has Sikh ethnic origins. If a person converts, they do not have Sikh ethnic origins but their children will. But physical attributes should not affect the meaning of expressions. The concept of an ethnic group connotes a complex of attributes which makes the group distinctive in character. “defined” speaks to defined by society or socially, not defined by the dictionary. It means a group which regards itself and others regard as constituting a distinctive group by shared ethnic origin.

In Price v Civil service commission 1977, the wording in the Sexual Discrimination Act was very similar. The meaning of can was interpreted as ‘can practically’. Married females were treated as a group for that act. It would be absurd if ‘can’ in one act had a completely different meaning than ‘can’ in another. In terms of justifiable, was the rule justified? No. The defendant saw the plaintiff’s wearing of a turban as so objectionable that it was a challenge to religious and cultural values of the school. The object of the race relations act was cultural diversity in an atmosphere of tolerance, not enforcing conformity. By interpreting the word ‘justifiable’ in a purely racial context, they gave the word a strained, unnatural and extended meaning. In King-Ansell v Police 1979 2 N.Z.L.R 531 a social anthropologist gave evidence saying there is no scientific basis for race. Instead the man on the street sees race based on different external features of human beings. The International Convention on the Elimination of All forms of Racial Discrimination does not concern itself anywhere with matters of religion or culture, or an ethnic group covers a religious or cultural group. ‘Ethnic’ dictionary definition 2) says or pertaining to having common racial, cultural and religious characteristics. The combination of definitions of ‘ethnic’ and ‘origins’ leads to two most compatible definitions of ethnic origins 1) Racial descent 2) a common cultural, linguistic, or religious source. Through encyclopaedic data, the biological identity of Sikhs makes it possible to define the group “Sikhs” by reference to their racial descent. The only single cultural feature of Sikhs is that they adhere to the Sikh religion. By having a wider definition of ethnic, Sikhs are a group. But that also means the Act applies to lots of groups it didn’t intend, i.e. monks. With reference to the long title of the act, three provisions are racial so the four grounds should be construed racially. But it was unthinkable that parliament would produce a race relations act that did not protect the Jews, who some see as a religion and others see as a race. In Clayton vs Ramsden 1943, courts have no doubt that Jews are a race. The phrase ‘ethnic origin’ was used of Acts of ’65 and ’76 to cover groups which had undoubted racial character, but might be difficult to prove as constituting a clearly separate race. The ‘no turban’ rule would decrease the opportunity of Sikhs’ educational rights dramatically. But all local authority schools were bound to admit Sikhs. The plaintiff was admitted to a similar school and was allowed to wear a turban so the discriminatory effect on the plaintiff was minimal. The judge said the only question was whether racial discrimination had occurred. The appellants case is based on indirect discrimination. Now

they only seek a declaration that there has been unlawful discrimination against them. On appeal:Held. Allowing the appeal, (1)that any discrimination against the plaintiffs could only be contrary to section 1 (1) (b) of the Race Relations Act if they were members of a ‘racial group’ defined by reference to ethnic origins as provided by section 3 (1) of the act; ‘“ethnic…origins” in the context…meant a group which was a segment of the population distinguished from others by a sufficient combination of shred customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not…biological. It was that combination which gave them an historically determined social identity in their own eyes and in those outside the group…Sikhs were in that sense a racial group.’ (2)“the plaintiffs had been discriminated against within the meaning of subsections (1)…a) the word “can”…meant “can in practice” or can consistently within the customs and cultural conditions of the racial group and therefore the “no turban” rules was not one which the second plaintiff could in the relevant sense comply.” b) the defendants could not justify their conduct. It was the very fact that the turban was a manifestation of the second plaintiff’s ethnic origins that was relied on as justifying the refusal to admit him as a pupil at the school. Key Questions 1. What are the important facts of the case? 2. What questions is the court addressing? 3. What are their answers? 4. How are they justified?

Son trying to enrol at Park Grove School. The school rules said, “no turbans” were allowed to be worn. The son was enrolled at a different school where he was allowed to wear a turban. His father brought an action against the school under the Race Relations Act 1976. Lord Tullybelton said the main question was whether Sikhs were a ‘racial group’ for the purpose of the Act. And as a result, what is the meaning of ‘can’ and ‘justifiable’ for the purposes of the act. There is no doubt that if racial discrimination has occurred it was in the field of education and unlawful. But the question is whether there was any racial discrimination. Racial group is defined as “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 which he falls into.”

Sikhs are not defined by colour, race, nationality or national origins. So, do they have distinct ethnic origins? What does ‘ethnic’ mean? 1) pertaining to race, something they are born with. But it is absurd for parliament to intend membership to a racial group to be proven scientifically on biological characteristics,...