Racism and Discrimination
In Commission for Racial Equality v Dutton the Court of Appeal held that Romany Gypsies were an ethnic group within the meaning of the Race Relations Act 1976 (RRA) having regard to the evidence of their shared history, geographical origin, distinct customs and language.
More recently in O’Leary v Allied Domecq, a case brought on behalf of Irish Travellers, the County Court accepted that Irish Travellers are also a distinct ethnic group for the purposes of the RRA. There are currently no reported cases relating to Gypsies or Travellers of other ethnic origins but there seems to be no reason why Scottish or Welsh Travellers could not argue that they are members of separate ethnic groups. Whether such an argument is accepted is likely to depend upon the assessment of expert evidence.
Gypsies and Travellers who can show that they are members of a distinct ethnic group can use the RRA, supplemented by the Race Relations (Amendment) Act 2000 (RRAA), to combat racism and discrimination. Travellers that are not members of a distinct ethnic group cannot claim the protection of the RRA and RRAA but they may be able to use Article 14 of the Convention to tackle discrimination by public bodies when their acts impinge upon other rights protected by the Convention.
If a Gypsy or Traveller’s race discrimination claim is to succeed then he or she must also show that he or she has been discriminated against in one or more ways that are unlawful under the RRA or the RRAA This includes direct discrimination, where a person is treated less favourably because of his or her race, and indirect discrimination, where a requirement or criteria is applied equally to all racial groups but which affects a particular racial group more severely. Direct discrimination is always unlawful, but indirect discrimination can be lawful if it is justified on non racial grounds.
An example of direct discrimination would be a pub that had a sign saying ‘No Gypsies or Travellers’. Indirect discrimination could be where a school requires all students who wish to enrol to provide a permanent address. This is a requirement that applies equally to everyone, but Gypsies and Travellers will be more likely to have greater difficulty compiling with it. As such it will be unlawful unless the school can justify it.
Racism and the Police
The RRAA imposes the general duty on police forces to carry out their functions with regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups. In addition the RRAA makes chief constables liable for acts of racial discrimination by police officers under their direction and control.
In Smith v Cheltenham Borough Council (decided before the RRAA was in force) a Gypsy woman and her daughter brought a claim against a local authority for breach of contract and against both the local authority and the police for breaching the RRA. The claimants had hired the Pittville Pump Rooms for the daughter’s wedding reception and paid a deposit. Based on allegations of disorder in recent years, and rumours about the upcoming wedding, the police became concerned that the wedding celebrations might involve public disorder and informed the local authority of their concerns. The local authority attached conditions to the claimants’ hire of the venue, including the payment of a large deposit and entry tickets, so the claimants booked an alternative venue (where the event took place without incident).
The judge decided that the local authority had breached the RRA. He decided that the police had no basis for their belief that the earlier disorder was linked with the claimants, stating: ‘the truth is that as soon as the word “Gypsy” appears assumptions are made that large numbers will descend and cause trouble.’ The Judge held that the local authority treated the claimants in an unfair and highhanded manner in contrast with the way in which the organisers of the Hunt Ball, an event known to pose serious risks of disorder, were treated.
With regard to the claim against the individual police officers, the judge found that although ‘the police had not acted well they had not knowingly aided the local authority to do an act made unlawful, as no officer was made party to the decision taken by the local authority.’
The Court of Appeal upheld the judgment.
Other examples of policing situations that may be unlawful under the RRA and RRAA are:
European Convention on Human Rights
Article 14 of the Convention prohibits discrimination in respect of the enjoyment of some other Convention right. So before you can show that Article 14 has been interfered, you need to show that the treatment that you consider discriminatory engages some other Convention right. So a decision to evict is likely to engage your right to respect for your home or private life under Article 8, or a decision to refuse to admit you to a school will engage your right to education under Article 2 of the First Protocol.
If such a decision treats you less favourably on the grounds of your race, nationality, religion or some other status, then it will be discrimination under Article 14. So this protection is not limited to recognised racial or national groups, but include discrimination on the grounds of ‘some other status’. Other status can include the status of persons who have a nomadic lifestyle, even if they do not belong to a particular racial group. Article 14 can therefore be relied on by both traditional Gypsies and Travellers and New Travellers.
Article 14 is not absolute, and differences of treatment can be permitted provided that they are justified for a legitimate objective and proportionate to that objective, but again the onus will be on the discriminator to justify that discrimination.
The HRA requires all public authorities to act compatibly with everyone’s Convention rights, and a victim of discrimination can bring a claim under the HRA to enforce their Convention rights. However, the HRA only binds public authorities, and a private person or body is not required to comply with the Convention.
More recently in O’Leary v Allied Domecq, a case brought on behalf of Irish Travellers, the County Court accepted that Irish Travellers are also a distinct ethnic group for the purposes of the RRA. There are currently no reported cases relating to Gypsies or Travellers of other ethnic origins but there seems to be no reason why Scottish or Welsh Travellers could not argue that they are members of separate ethnic groups. Whether such an argument is accepted is likely to depend upon the assessment of expert evidence.
Gypsies and Travellers who can show that they are members of a distinct ethnic group can use the RRA, supplemented by the Race Relations (Amendment) Act 2000 (RRAA), to combat racism and discrimination. Travellers that are not members of a distinct ethnic group cannot claim the protection of the RRA and RRAA but they may be able to use Article 14 of the Convention to tackle discrimination by public bodies when their acts impinge upon other rights protected by the Convention.
If a Gypsy or Traveller’s race discrimination claim is to succeed then he or she must also show that he or she has been discriminated against in one or more ways that are unlawful under the RRA or the RRAA This includes direct discrimination, where a person is treated less favourably because of his or her race, and indirect discrimination, where a requirement or criteria is applied equally to all racial groups but which affects a particular racial group more severely. Direct discrimination is always unlawful, but indirect discrimination can be lawful if it is justified on non racial grounds.
An example of direct discrimination would be a pub that had a sign saying ‘No Gypsies or Travellers’. Indirect discrimination could be where a school requires all students who wish to enrol to provide a permanent address. This is a requirement that applies equally to everyone, but Gypsies and Travellers will be more likely to have greater difficulty compiling with it. As such it will be unlawful unless the school can justify it.
Racism and the Police
The RRAA imposes the general duty on police forces to carry out their functions with regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups. In addition the RRAA makes chief constables liable for acts of racial discrimination by police officers under their direction and control.
In Smith v Cheltenham Borough Council (decided before the RRAA was in force) a Gypsy woman and her daughter brought a claim against a local authority for breach of contract and against both the local authority and the police for breaching the RRA. The claimants had hired the Pittville Pump Rooms for the daughter’s wedding reception and paid a deposit. Based on allegations of disorder in recent years, and rumours about the upcoming wedding, the police became concerned that the wedding celebrations might involve public disorder and informed the local authority of their concerns. The local authority attached conditions to the claimants’ hire of the venue, including the payment of a large deposit and entry tickets, so the claimants booked an alternative venue (where the event took place without incident).
The judge decided that the local authority had breached the RRA. He decided that the police had no basis for their belief that the earlier disorder was linked with the claimants, stating: ‘the truth is that as soon as the word “Gypsy” appears assumptions are made that large numbers will descend and cause trouble.’ The Judge held that the local authority treated the claimants in an unfair and highhanded manner in contrast with the way in which the organisers of the Hunt Ball, an event known to pose serious risks of disorder, were treated.
With regard to the claim against the individual police officers, the judge found that although ‘the police had not acted well they had not knowingly aided the local authority to do an act made unlawful, as no officer was made party to the decision taken by the local authority.’
The Court of Appeal upheld the judgment.
Other examples of policing situations that may be unlawful under the RRA and RRAA are:
- Raids on sites in pursuit of crime and disorder considerations, in which all vehicles are searched (unless, for example, there is a reasonable suspicion that all of the vehicles may be implicated in criminal activity, which is the subject of the raid). Police operations concerning a suspect or suspects in a house would not usually involve all other houses in the vicinity, so it is possible that such ‘blanket’ raids could be shown to be discriminatory;
- Excluding Gypsies and Travellers from the ethnicity monitoring of the use of discretionary powers (such as ‘stop and search’);
- Escorting recently-evicted Gypsies and Travellers to County boundaries;
- Evicting all Gypsies and Travellers from an unauthorised encampment on the grounds of criminal or anti-social behaviour, when prosecution of a few members of a group would be appropriate on those grounds;
- Failure to properly investigate an alleged racist attack on a member of the Gypsy or Traveller communities.
European Convention on Human Rights
Article 14 of the Convention prohibits discrimination in respect of the enjoyment of some other Convention right. So before you can show that Article 14 has been interfered, you need to show that the treatment that you consider discriminatory engages some other Convention right. So a decision to evict is likely to engage your right to respect for your home or private life under Article 8, or a decision to refuse to admit you to a school will engage your right to education under Article 2 of the First Protocol.
If such a decision treats you less favourably on the grounds of your race, nationality, religion or some other status, then it will be discrimination under Article 14. So this protection is not limited to recognised racial or national groups, but include discrimination on the grounds of ‘some other status’. Other status can include the status of persons who have a nomadic lifestyle, even if they do not belong to a particular racial group. Article 14 can therefore be relied on by both traditional Gypsies and Travellers and New Travellers.
Article 14 is not absolute, and differences of treatment can be permitted provided that they are justified for a legitimate objective and proportionate to that objective, but again the onus will be on the discriminator to justify that discrimination.
The HRA requires all public authorities to act compatibly with everyone’s Convention rights, and a victim of discrimination can bring a claim under the HRA to enforce their Convention rights. However, the HRA only binds public authorities, and a private person or body is not required to comply with the Convention.
