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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mandla (Sewa Singh) v Dowell Lee [1982] UKHL 7 (24 March 1982)
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Cite as: [1983] 2 WLR 620, [1983] ICR 385, [1983] 1 All ER 1062, [1983] IRLR 209, [1982] UKHL 7, [1983] 2 AC 548

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    Parliamentary Archives,
    HL/PO/JU/18/243

    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.

    3146294-5 Dd 8209971 C3 3/83



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