Transcript Racial Equality Directive: the European experience

What lessons we should learn from
other jurisdiction for a proper racial
discrimination legislation
Patrick Yu
Executive Director
Northern Ireland Council for Ethnic
Minorities
Why legislation?
 Discrimination
 Inequality
 Exclusion
Issue
 What are the experiences of minority
ethnic people in Hong Kong in terms
of discrimination, inequality and
exclusion in the areas of employment
(domestic and migrant workers), selfemployment, education, training,
housing, health care, social benefits,
provision of goods, facilities and
services?
Nature of equality legislation
 Minimum standard and norms of the society
on what are the acceptable behaviour;
 Concept of equality;
 Human rights dimension;
 Political consensus or compromise;
Issues
 Means (grounds, scope of protection, concept of
discrimination, exceptions and exemptions
 Ends (purpose of the law: considers:
1. Whether “equality and diversity” are
the core values of the Hong Kong society?;
2. Whether the government, as well as the
general public, have a legal duty to promote
equality of opportunity?
Minimal standard
 Law may deter certain human behaviour
 Law cannot eradicate or outlaw the
prejudice’s mind;
 Making law is always seen to solve all the
problems;
 Equality law has less impact if there is no
parallel process on the development of
policy and practice, public awareness
(formal and informal education) and media.
Concept of Equality
 Equal treatment
 Equality of outcome
 Equality of opportunity
Equal Treatment(formal equality)
 Justice requires consistency, therefore, likes
should be treated alike;
 It does not take into account existing distribution
of wealth and powers;
 Assumes two individuals are relevant alike;
 No differences treating between two such people
equally badly and equally well;
 Need to find a comparator;
 Individual rights, not group rights
Equality of outcomes / results
 Focus on existing inequality of distribution of
wealth and power;
 Improve the relative position of particular groups,
whether to redress past inequality and
disadvantage position;
 Emphasize outcomes and results in terms of
equality impact;
 Concept of indirect discrimination and group
rights model;
 May require unequal treatment, such as special
measures (including reverse discrimination) if
necessary to achieve an equal impact.
Equality of Opportunity
 Procedural equality;
 Focus on facilitating personal self-fulfilment by
equalising opportunities;
 Emphasize EO is consistent with inequality of
treatment and inequality of outcomes/results;
 Unequal treatment might be necessary to equalize
the opportunities of all individuals, but once
opportunities are equal, different choices and
capacities might lead to inequality of results.
Two notions of equality
 Negative equality
* Put everyone equal before the law.
* As the result the principle of nondiscrimination
 Positive equality
* Equal protection, including special
measures
 Examples of the Race Equality Directive
Equality & Difference
 Difference implies inequality;
 Inequality implies inferiority;
 In a pluralistic society and a global
economy difference and diversity should be
regard as positive assets of the society;
 Equality, far from suppressing difference,
should accommodate and even embrace it.
Human Rights and Equality
 UN mechanism:
1. ICCPR Article 26;
2. ICESCR Article 2;
2. ICERD Article 1 and 5;
3. CEDAW Article 1;
4. CRC Article 2(1) & (2) ;
5. Drafting process on a new Disability
Convention
Relevance to Hong Kong
 Constitution of PRC (…equal before the
law…..respect to and the protection of
human rights (Article 33)
 Basic Law of the Hong Kong Special
Administrative Region of the PRC
(recognised the above UN obligations)
 Bill of Rights Ordinance (copy ICCPR)
 Other related equality legislations (gender,
family status and disability)
Issues
 What are the relationships between the new
race legislation and the Constitution of
PRC, the Basic Law and the Bill of Rights
Ordinance?
 What are the relationships between the new
race legislation and the existing equality
legislations?
Issues
 Can we identify different forms of
protection from the above relationships in
order to expand the scope of protection due
to the limitation of the proposal on race?
 How we accommodate and tackle multiple
identities and multiple discrimination?
Wider conception of equality
legislation
 Professor Michel Mine argued that discrimination
law can be compared to a tree:
 The roots: representing the values embodied in
and defended by the law (human dignity, and
everything that it implies);
 The trunk: representing applicable rules and issues
common to all types of discrimination (the
concepts of discrimination and assessment
systems in particular)
Wider conception of equality
legislation
 The branches: each one representing a
particular area of discrimination (sexual,
racial, disability, etc.) each with specific
legal, historical and sociological features,
with the possibility of transferring legal
solutions between branches
Wider conception of equality
legislation
 How to use equality principle to realise economic,
social and cultural rights (Article 1 & 5 of
ICERD)?
 “Non-discrimination, together with equality before
the law and equal protection of the law without
any discrimination, constitutes a basic principle in
the protection of human rights…A distinction is
contrary to the Convention if is has either the
purpose or the effect of impairing particular rights
and freedom…” (ICERD General
Recommendation 14)
Wider conception of equality
legislation
 In order to have equal protection before the law, it
implies the state to have a positive duty to
promote equality;
 In UK, the Race Relations (Amendment) Act 2000
provides that public authorities has a legal duty to
the promotion of the equality of opportunity and
also a duty to promote good relations between
different racial groups;
 The equivalent in Northern Ireland it is under
Section 75 of the Northern Ireland Act 1998, but it
covers nine grounds, including race.
Orientation of legislation
 Victims perspective;
 Administrative perspective;
 Or both?
Who should be protected by the
law?
 Principle: victim identification
“Having considered reports from States Parties
concerning information about the ways in which
individuals are identified as being members of a
particular racial or ethnic groups or groups, is of
the opinion that such identification shall, if no
justification exists to the contrary, be based upon
self-identification by the individual concerned.”
(Art.1 para. 1 & 4 of the General
Recommendation 8: identification with a
particular racial or ethnic group)
Who should be protected by the
law?
 Individual or group (natural person or legal
personality, or both)
“1. The Committee stresses that, according to the
definition given in Article 1, para. 1 of the ICERD,
the Convention relates to all persons who belong
to different races, national or ethnic groups or to
indigenous people. If the Committee is to secure
the proper consideration of the periodic reports of
States Parties, it is essential that States Parties
provide us as far as possible the Committee with
information on the presence within the territory of
such groups.
Who should be protected by the
law?
2. It appears from the periodic reports…….that a
number of State Parties recognise the presence on
their territory of some national or ethnic groups or
indigenous peoples while disregarding others.
Certain criteria should be uniformly applied to all
groups, in particular the number of persons
concerned, and their being of a race, colour,
descent or national or ethnic origin different from
the majority or from other groups within the
population.” (General Recommendation 24)
Issue
 Does the proposal inclusive?
 Do migrant workers and domestic workers
are protected?
 EU Race Equality Directive (25 countries)
outlaw any form of discrimination in the
field of employment, training, education,
housing, social welfare and benefits
(including health), social advantage, the
provision of goods, facilities and services.
Grounds of protection
 International comparison on grounds of
protection:
ICCPR Art. 26: race, colour, language,
religion, national
ICERD Art. 1: race, colour, descent, or
national or ethnic origin
ECHR Art. 14: race, colour, language,
religion, national, association
with a national minority
Grounds of protection
ECRI Recommendation 7: race, colour,
language,
nationality or
national or ethnic
origin
EU Race Equality Directive: racial or ethnic
origin
UK legislation:
racial ground means colour,
race, nationality, national or
ethnic origin
Grounds of protection
Australia legislation: race, colour, descent,
national or ethnic origin
Canada legislation: race, ancestry, place of
origin, colour, ethnic
origin, citizenship
South Africa: race, ethnic origin, colour,
culture, language
Grounds of protection


1.
2.
3.
Case law: Mandle v Lee [1983] HL, per Lord
Fraser
Definition of ethnicity:
Either a common geographical origin or descent
from a small number of common ancestors;
A common language, which did not necessarily
have to be peculiar to the group;
A common literature peculiar to the group
Mandle v Lee
4. A common religion different from that of
neighbouring groups or from the general
community surrounding it and
5. The characteristics of being a minority or
being an oppressed or a dominant group
within a larger community
Case law development since
Mandle v Lee
1989: CRE v Dutton – Irish Travellers
1997: Irish
1998: British in Northern Ireland
1999: English in Scotland
 Since Mandle v Lee, Sikh and Jews only,
not Isalm
A specific protected group on the
law?
Northern Ireland:
Irish Traveller is a racial group within the
meaning of the legislation in which it
defines as a group of people who are living
in the nomadic way of life, either identify
by themselves or by others, on the island of
Ireland.
Conclusion: the case for Mainland Chinese
Scope of protection
EU Race Equality Directive: “….this Directive shall
apply to all persons, as regards both the public and
private sectors, including public bodies, in relation
to:
(a) Conditions for access to employment, to selfemployment and to occupation, including
selection criteria and recruitment conditions,
whatever the branch of activity and at all levels of
the professional hierarchy, including promotion;
Scope of protection
(b) Access to all types and to all levels of vocational
guidance, vocational training, advanced vocational
training and retraining, including practical work
experience;
(c) Employment and working conditions, including
dismissals and pay;
(d) Membership of and involvement in an
organisation of workers or employers, or any
organisation whose members carry on a particular
profession, including the benefits provided by
such organisation;
Scope of protection
(e) Social protection, including social security
and healthcare;
(f) Social advantages;
(g) education;
(h) Access to and supply of goods and
services which are available to the public,
including housing.
Issues
 Equality access to employment and public
services due to language, cultural and other
barriers;
 Language and cultural factors are deemed to
be in-direct discrimination.
Concept of discrimination
 Direct discrimination (outcome oriented
definition?);
 Indirect discrimination (statistical
comparator?);
 Harassment;
 Victimisation; and
 In-action (under statutory duty)
Exception & Exemption
Principles of exception and exemption:
 Specific;
 Legitimate aims and objectives are clear;
 Proportionality;
 Review and its process
Exception: the law in EU
Article 5: Positive Action
“With a view to ensuring full equality in
practice, the principle of equal treatment
shall not prevent any Member State from
maintaining or adopting specific measures
to prevent or compensate for disadvantages
linked to racial or ethnic origin.” (see also
Preamble: para. 17)
Issues
 New issues and social conditions are change
overtime, how we ensure that there is a
mechanism to review whether exemption
and exception are further justified.
 Who should participate in the review
process? (representation from minority
ethnic groups? NGOs? social partners? etc.)
Defence of rights (Article 7)
 Judicial and / or administrative procedures
for the enforcement of the national
legislation (including conciliation
procedures);
 NGOs, social partners, etc. ,who has
legitimate interest in the area, can represent
the victim(s) at all procedures if consent is
given.
Issues
 Shall we consider the Labour Tribunal of
Hong Kong to have competence on equality
legislation in the area of employment and
related issues?
 EU experience: 1. Director of Equality
Investigation Office (Ireland); 2. Dutch
Equal Treatment Commission
Burden of Proof (Article 8)
 Burden of proof shift to the respondent if
the victim establish a prima facie case;
 It will be the respondent to disapprove the
alleged discrimination.
Social Dialogue (Article 11)
 Member States shall take adequate
measures to promote the social dialogue
between the two sides of industry with a
view to fostering equal treatment, including
through the monitoring of workplace
practice, collective agreements, codes of
conduct, research or exchange of
experiences and good practices.
Dialogue with NGOs (Article 12)
 Member States shall encourage dialogue
with appropriate NGOs which have, in
accordance with their national law and
practice, a legitimate interest in contributing
to the fight against discrimination on
grounds of racial and ethnic origin with a
view to promoting the principle of equal
treatment.
Enforcement body


Paris Principle
CERD General Recommendation 17:
Promote respect for the enjoyment of human rights
without any discrimination, as expressly set out in
Article 5 of the ICERD;
2. Review government policy towards protection against
racial discrimination;
3. Educate the public about the obligation of State Parties
under the Convention;
4. Assist the government in the preparation of reports
submitted to the CERD
(Commission on Human Rights resolution 1992/54 of March
1992)
1.
Effective remedy
 Types of remedies:
Compensation in terms of
1. loss of earnings
2. injury of feeling
3. injunctions and other relief
Compliance: Article 14
“Member States shall take the necessary
measures to ensure that:
(a) Any laws, regulations and administrative
provisions contrary to the principle of
equal treatment are abolished;
(b) Any provisions contrary to the principle of
equal treatment which are……………..are
or may be declared, null and void or are
amended.”
Other important process
 Development of policy and practice within public
and private sector to the promotion of racial
equality (NICEM’s Race Equality Audit);
 Education (formal and informal) and Training
(Anti-racism, cultural awareness, diversity
training, etc.)
 Media: positive to use media to portrait the
positive image of minority ethnic people and their
contribution to the society
Conclusion
What made man to be a man? It is humanity and
dignity. Without humanity and dignity it is not a man
and worse to be a human being.
We have only one race in this world. It is the human
race. But for this humanity, dignity and one human
race, men are struggle to fight for racism,
xenophobia, anti-semitism and anti-islamphobia.