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Turban or not turban — that is the question (Mandla v. Dowell Lee)

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    References

    1. 1

      Poulter, 25International and Comparative Law Quarterly (1976), 508.

    2. 2

      Karsten, 32Modern Law Review (1969), 215.

    3. 3

      [1983] 2 W.L.R. 620; 1 All E.R. 1062. References below are to the former series.

    4. 5

      [1983] Q.B. 1; [1982] 2 W.L.R. 932.

    5. 6

      See [1983] 2 W.L.R. at 627 G. for one concession.

    6. 7

      Judicial notice is taken of such matters: cf.Price v. Civil Service Commission [1977] 1 W.L.R. 1417: more women than men are out of the employment market in their twenties and thirties.

    7. 8

      Cmnd. 6234 (1975), para. 25.

    8. 9

      The then Home Secretary, Mr. Roy Jenkins, wished to prohibit what the United States Supreme Court had called “not only overt discrimination, but also practices that are fair in form, but discriminatory in operation”:Griggs v. Duke Power Co. (1971) 401 U.S. 424 at 431, dealing with the Civil Rights Act 1964. American cases may legitimately be used in interpretation:Snoxell v. Vauxhall Motors Ltd. [1977] I.C.R. 700.

    9. 11

      For an illustration seePerera v. Civil Service Commission [1983] I.R.L.R. 166: the requirement must be formulated by the applicant.

    10. 13

      The phrase “ethnic origins” occurs in the United Nations Declaration on the Elimination of all Forms of Racial Discrimination, General Assembly Resolution 1904 (XVIII), 20 November, 1963.

    11. 14

      Compare the Fair Employment (Northern Ireland) Act 1976. For recent analysis of that statute see McCrudden, 45Modern Law Review (1982), 617 andidem, [1981]Current Legal Problems 211. For a general survey of religious discrimination see Robilliard, 6Human Rights Review (1981), 90.

    12. 15

      [1983] Q.B. at 15H. The 1933 Oxford English Dictionary includes a phrase omitted in the Concise: “peculiar to a race or nation”. This terminology was not put forward.

    13. 16

      [1983] 2 W.L.R. at 625–6.

    14. 17

      At 625 G. Similarly Lord Templeman at 632 B. This view is contrary to that of the House of Lords inEaling London Borough Council v. Race Relations Board [1972] A.C. 342. Lord Kilbrandon at 386 said that the prohibited grounds had a common theme: “they have not been acquired and they are not held by people of their own choice. They are in the nature of inherited features which cannot be changed, as religion ... can be changed”. If one may join and leave a class at will the reason for the exclusion of religious discrimination loses part of its force.

    15. 18

      At 625 C–D.

    16. 19

      At 625. A similar decision was reached inKing-Ansell v. Police [1979] 2 N.Z.L.R. 531 (Court of Appeal of New Zealand), cited by Lord Fraser. The case concerned Jews. See Williams 10Industrial Law Journal (1981), 263.

    17. 20

      At 631C.

    18. 21

      At 631H-632B.

    19. 22

      Lester and Bindman,Race and Law, Harmondsworth, Penguin, 1972, 155.

    20. 23

      H. C. Deb. Vol. 716, Col. 917 (16 July, 1965).

    21. 24

      At 628F.

    22. 25

      Supra note 7. Applied inPerera v. Civil Service Commission (no.2) [1982] I.C.R. 350 to the 1976 Act.

    23. 26

      So much so that leading textbooks often treat the discrimination sections together e.g. Hepple and O'Higgins,Employment Law, London, Sweet & Maxwell, 4th ed., 1981; Hood Philips,Constitutional and Administrative Law, London, Sweet & Maxwell, 6th ed. 1978. For the argument against equating race and sex see White, 5New Community (1976–77), 419.Cf. Rendelet al., Equality for Women, Fabian Research Series No. 268, p. 43 (1968).

    24. 27

      At 629D.

    25. 28

      [1980] I.C.R. 144 (Note). This Note is the Court of Appeal's refusal of leave to appeal.

    26. 29

      At 629 G. For example, in an employment case, the question will be for the industrial tribunal, and will not be appealable.

    27. 30

      Singh v. Rowntree Mackintosh Ltd. [1979] I.C.R. 556, disapproving on this pointSteel v. Union of Post Office Workers [1978] 1 W.L.R. 641.

    28. 31

      Previous note. The decision is on the Sex Discrimination Act, s.l(1)(b), but as stated above the same principles apply to racial discrimination. It was followed inHurley v. Mustoe [1982] I.R.L.R. 561 (race).

    29. 32

      [1982] I.R.L.R. 418.

    30. 33

      Supra, note 30.

    31. 34

      [1983] Q.B. 17–18, 25 (“engine of oppression”, “inquisition”),Cf. Pannick,The Guardian, 28 February 1983, about the appeal court's “evident dislike” of the Race Relations Act.

    32. 35

      At 630 B–D.

    33. 36

      At 632 D. It is unfortunate that Lord Templeman called a violation of the Race Relations Act 1976 a criminal offence (at 630 H). It is a strange crime that is heard in the county court; the sanctions for which are damages and declarations; of which the terminology includes claimant and respondent. A breach of the legislation juridically gives rise to a statutory tort: s.57(1). The exclusion of the criminal law means that discriminators do not become martyrs.

    34. 37

      SeeAnnual Report, 1978, pp.5–6.Cf. the Equal Opportunities Commission which adopts a substantially greater role in the elimination of sexual discrimination.

    35. 38

      The Guardian, 9 October 1982.

    36. 39

      Official Report, Standing Committee, B, 7 May–25 June, 1968, cited in Lester and Bindman,supra, note 22.

    37. 40

      Singh's case, supra note 30,Panesar v. Nestle Co. Ltd. [1980] I.R.L.R. 60. InKingston and Richmond A.H.A. v. Kaur [1981] I.C.R. 631, the Tribunal called for the resolution of this dispute. Industrial tribunals also accepted claims by Sikhs:Virdee v. E.C.C. Quarries [1978] I.R.L.R. 295;Gill v. Walls Meat Co. (1977)Health and Safety Information Bulletin 12 (mentioned in Robilliard [1980]New Community 261). See alsoSingh v. Lyons Maid Ltd. [1973] I.R.L.R. 388 on the impact of the unfair dismissal legislation on Sikhs.

    38. 41

      Cmnd. 6234 para. 55.

    39. 42

      E.g. Lustgarten,Legal Control of Racial Discrimination, London, MacMillan, 1980, 77. The reference in the index should be to this page and p.59; Street,Freedom, The Individual and The Law, Harmondworth, Penguin, 4th ed., 1977, 299. For the contrary view see e.g. Lester and Bindman,supra note 22 at 155; MacDonald,Race Relations, The New Law, London, Butterworths, 1977, 16, 18. Some publications make no reference at all e.g. Home OfficeRacial Discrimination, H.M.S.O; 1977; Wright, Hewitt, Sedley,Race Relations Guide, London, N.C.C.L., 1978, though there is an example involving a Mr. Singh.

    40. 43

      See the letter inThe Times, 3 August, 1982, from the President of the Confederation of Indian Organisations. There were two demonstrations in London against the Court of Appeal's ruling as well as a petition to the Prime Minister.

    41. 44

      The Guardian, 25 March, 1983.

    42. 45

      Ibid.

    43. 47

      Daily Telegraph, 9 February, 1980.

    44. 48

      Supra note 40. The Court of Appeal gave leave to appeal but the complainant withdrew her application on the respondents' amending that regulation. The case concerns women's clothing but the same principle applies.

    45. 49

      E.g. Race Relations Board,Annual Report, 1971; Williams,supra note 19 at 266; Lustgarten, 28International and Comparative Law Quarterly (1979), 221 at 238. (The same words occur inidem, supra note 42 at 157). Statements to the contrary appear in e.g. Lester and Bindman,supra n.22 at 157 andHalsbury's Laws of England, 4th ed. and vol. 14, para. 1423. For an instance of a Christian school turning away Jews, see Race Relations Board Report 1971–2, p.7 (Jews said to be a religious, not an ethnic group). See also s.35 of the 1976 Act: educational establishments fulfilling special needs of racial groups.

    46. 50

      At 624 A. Lord Templeman did not mention them.

    47. 51

      To the contrary are Rabbi K. L. Cohen,The Times, 3 August 1982, and the Jewish Employment Action Group [1983]Public Law 4;The Guardian, editorial 31 August 1982.

    48. 52

      [1982] 3 W.L.R. at 937. This was contrary to the view of Mr. David Lane at the Committee stage of the 1976 Act: H.C. Official Reports Standing Committee A.

    49. 53

      For an earlier case where it was conceded that Jews were protected seeSeide v. Gillette Industries Ltd [1980] I.R.L.R. 427. See alsoHeron Corporation v. Commis [1980] I.C.R. 713 (question of who is a Jew not dealt with).

    50. 54

      E.g. MacDonald,supra note 42 at 17.

    51. 55

      [1982] 3 W.L.R. 955.

    52. 56

      [1979] 2 N.Z.L.R. at 543. Use of the term “presumed” is applicable to Rastafarians. Woodhouse J. speaks of “ancestral ties, whether real or assumed and the traditional and cultural values and beliefs that have been handed down and are kept in mind and adhered to by all”.

    53. 57

      The Guardian, 1 October, 1982.

    54. 58

      Millar v. Taylor (1769) 4 Burr. 2303;South Eastern Rail Co. v. Railway Commissioners (1881) 50 L.J.K.B. 201;Beswick v. Beswick [1968] A.C. 58;Davis v. Johnson [1979] A.C. 317;Hadmor Productions v. Hamilton [1982] 1 All E.R. 1042. InHilder v. Dexter [1902] A.C. 474, Lord Halsbury L.C. refused to speak on the interpretation of a statute he had drafted. The present rule is supported by the English and Scottish Law Commissions, Report no. 21,The Interpretation of Statutes (H.C. 256), 1969, para. 61, and by the Renton CommitteeThe Preparation of Legislation, Cmnd. 6053, 1975.

    55. 59

      E.g.Re The Regulation and Control of Aeronautics in Canada [1932] A.C. 54.

    56. 60

      E.g.Caird v. Sime (1887) 12 App. Cas. at 359.

    57. 61

      H. L. Deb. Vol. 418 Col. 1345–6 (26 March, 1981).

    58. 62

      Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 Q.B. 614;R. v. Greater London Council ex p. Blackburn [1976] 3 All E.R. 1984;R. v. I.R.C. ex p. Rossminister Ltd. [1979] 3 All E.R. 385;Hadmor Productions v. Hamilton [1981] 2 All E.R. 724. He was rebuked inDavis, supra note 58, andHamilton, ibid., and in H. L. Deb. Vol. 405 Col. 503 (13 February 1980). He has recently resiled from his position:Norwich City Council v. Secretary of State [1982] 1 All E.R. 737 at 745.

    59. 63

      R. v. Local Commissioners for Administration [1979] Q.B. 287, calledBradford City Council v. Lord Commissioner in Lord Denning,The Discipline of Law, London, Butterworths, 1979.

    60. 64

      See for example the comments of Smith on Lord Diplock's use of recklessness inR. v. Caldwell [1981] 2 W.L.R. 509 in [1981]Criminal Law Review 393.

    61. 65

      Sacks [1982]Statute Law Review at 157.Cf. Cretney, 119New Law Journal (1969), 301. 1.

    62. 66

      See especially Lord Reid inBeswick, supra note 58 at 74.Cf. his contrary view inWarner v. M.P.C. [1969] 2 A.C. 256 at 279.

    63. 67

      Lord Reid inBlack-Clawson International Ltd. v. Papierwerke Waldhof — Aschaffenburg A.G. [1975] 1 All E.R. 810 at 815.

    64. 68

      Supra note 58 at 350.

    65. 69

      See also the House of Lords Debate on the Interpretation of Legislation Bill, H. L. Deb. Vol. 405, Cols. 276–306 (13 February, 1980). The 1981 version passed the Lords but was objected to on its second reading in the Commons.

    66. 70

      C.J. 1818, 389. See Leopold, [1981]Public Law 316.

    67. 71

      [1976] A.C. 285. Zander believes that “simple conservatism” has prevented this device being adopted:The Law-Making Process, London, Weidenfeld and Nicolson, 1980, 82.

    68. 72

      Report no. 21, para. 21. Samuels has called this “government by circular”, [1980]Statute Law Review at 97. It was rejected by the Renton Committee, para. 19, 24.

    69. 73

      A similar idea was mentioned by Lord Scarman inDavis, supra note 58 at 250.

    70. 74

      The device “aroused the antagonism of the Parliamentary draftsmen”: Lord Hailsham in H. L. Deb. Vol. 405, vol. 300.

    71. 75

      [1976] 1 All E.R. 39 at 59.

    72. 76

      H.C. Official Report, Standing committee A (1976) Cols. 84–118. The debate on the second reading had only a fleeting reference to Sikhs: H.C. Deb. Vol. 1027 col. 1653.

    73. 77

      Cmnd. 6234 (1975).

    74. 78

      Supra note 65 at 158.

    75. 79

      E.g. the Supreme Court of the United States inUnited States v. American Trucking Association 310 U.S. 534 said: “when aid to construction of the meaning of words, as used in the statute, is available, there can certainly be no ‘rule of law’ which forbids its use”. (Quoted in Cross,Statutory Interpretation, London, Butterworths, 1976, 133).

    76. 80

      E.g. Longley,The Times, 3 August, 1982.Cf., however,Blathway v. Crawley [1976] A.C. 397; not contrary to public policy that beneficial interest should go elsewhere if beneficiary became a Roman Catholic. Similar isRe Lysaght [1966] Ch. 191. For illustrations of discrimination on religious grounds see Hofler, 1983Law Society's Gazette 1043.

    77. 81

      [1978] Q.B. 36.

    78. 82

      Brynmor John, Official Report, Standing Committee A (29 April, 4 May 1976). Other reasons include: why should religious beliefs be privileged when other philosophies, e.g. communism, are not?

    79. 83

      As suggested by Mr. N. Budgen, H.C. Deb. Vol. 1027 Col. 1638.

    80. 84

      The Times, 3 August 1982.

    81. 85

      To similar effect in the European Convention Art. 14.

    82. 86

      See also Art. 3 (freedom from degrading treatment); Art. 8 (respect for private life); Art. 10 (right to freedom of expression). Art. 9 was briefly considered by an English court inPanesar, supra note 40.

    83. 87

      Schmidt v. Home Office, 12 Yearbook of the European Commission on Human Rights (1969), 306. One difficulty of including religion is the problem of deciding what is a religion, as in this case.

    84. 88

      Prais v. Council of the European Communities [1976] 2 C.M.L.R. 708.

    85. 89

      Sikhs are sometimes an example of what may be called “multiple discrimination”: non-white, non-Christian and having their cultural centre, Amritsar, in a country other than the U.K.Cf. Irish Roman Catholics.

    86. 90

      Cf. Marshall,Constitutional Theory, Oxford, Clarendon, 1971, 152, who argued that the earlier race relations legislation was directed solely at groups who could not choose to change their identity.

    87. 91

      Cf. Robilliard [1980]New Community at 262.

    88. 92

      Employment Act 1982, s.3, creating a new s.58(4) in the Employment Protection (Consolidation) Act 1978 in place of s.58(2A) which was incorporated by the Employment Act 1980, s.7.

    89. 93

      See ss. 26, 29 and sched. 5. S.25(4)–(5) give a parent the right to withdraw and to send the child to another place for religious instruction provided that the running of the school is not unreasonably disrupted.

    90. 94

      But seeAhmad, supra note 81 andcf. Jones v. Lee [1980] I.C.R. 310.

    91. 95

      Abortion Act 1967, s.4.

    92. 96

      See e.g.Prais, supra note 88 (Jew):Ahmed, supra note 81 (Muslim) (note the forceful dissent of Scarman L.J., as he then was);Esson v. United Transport Executive [1975] I.R.L.R. 48 (Seventh Day Adventist);Ostreicher v. Secretary of State [1978] 3 All E.R. 591 (Chasidic Jew).

    93. 97

      E.g. the lack of a Brandeis brief and of group actions.Cf. Galanter, 9Law and Society Review (1974), 95 at 143 — strategy for making “one-shotters” into “repeat players”.Cf. also Marshall [1969]Current Legal Problems 50–1.

    94. 98

      H.C. Deb. Vol. 1027 col. 1653.

    95. 99

      Roy Hattersley at a rally against the Court of Appeal's ruling inMandla.

    96. 100

      H.C. Deb. Vol. 1027 Col. 1547.

    97. 101

      28International and Comparative Law Quarterly (1979), 222.

    98. 102

      SeeZarczynska v. Levy [1979] I.C.R. 184: “the great civilised principles” of non-discrimination; andClarke v. Eley (IMI) Kynock Ltd. [1982] I.R.L.R. 482. On the earlier legislation see Bentil [1973]Public Law 157.

    99. 103

      An estimated 200,000 arrived and stayed 1890–1915.

    100. 104

      Cf. the number of polygamous Jewish marriages in the Law Reports (e.g.Cheni v. Cheni [1965] P.233, Sephardic Jews), with the number of Muslim marriages e.g.Ali v. Ali. [1965] P.85.

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    Turban or not turban — that is the question (Mandla v. Dowell Lee). Liverpool Law Rev 5, 75–90 (1983). https://doi.org/10.1007/BF01079986

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