Factual and Procedural Background
The case concerns whether a particular group commonly referred to as "gipsies" constitutes a racial group within the meaning of the Race Relations Act 1976. The Defendant, Mr. Dutton, was the licensee of several public houses over a period of years, including the Cat and Mutton public house. He experienced disturbances and damage caused by individuals living in caravans illegally parked nearby, which led him to display signs stating "no travellers" to exclude such persons from his premises. The Commission for Racial Equality challenged the signs as discriminatory against gipsies, bringing an action under section 63 of the Act seeking a declaration of contravention of section 29 and an injunction against the continued display of the signs. The County Court dismissed the action, and the Commission appealed.
Legal Issues Presented
- Whether the term "travellers" as used in the notices is synonymous with "gipsies" and whether the notices constitute direct discrimination on racial grounds under section 1(1)(a) of the Race Relations Act 1976.
- Whether gipsies constitute a racial group defined by reference to ethnic origins within the meaning of the Act, relevant to claims of indirect discrimination under section 1(1)(b).
- Whether the Defendant's notices amount to indirect discrimination by applying a condition which disproportionately affects gipsies and if such discrimination can be justified under section 1(1)(b)(ii).
Arguments of the Parties
Commission for Racial Equality's Arguments
- The term "travellers" used in the Defendant's notices is synonymous with "gipsies" and discriminates against them on racial grounds.
- Gipsies constitute a racial group defined by ethnic origins, and thus are protected under the Race Relations Act 1976.
- The notices impose a condition that disproportionately excludes gipsies, constituting indirect discrimination.
Defendant's Arguments
- The notices were intended to exclude persons leading a nomadic lifestyle causing disturbances, not to discriminate against gipsies as a racial group.
- The term "travellers" is broader and not synonymous with "gipsies."
- No expert evidence was presented to counter the Commission's claims, but the Defendant relied on the judge's assessment of the evidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Mills v. Cooper [1967] 2 Q.B. 459 |
Interpretation of "gipsy" in statutory context as a person leading a nomadic life, not necessarily a racial group. |
The court distinguished the statutory meaning of "gipsy" from the racial group concept under the Race Relations Act, rejecting reliance on this precedent to define "gipsy" for discrimination claims. |
| Mandla v. Dowell Lee [1983] 2 AC 548 |
Definition of "racial group" including ethnic origins and criteria for ethnic group identification. |
The court applied the Mandla criteria to assess whether gipsies constitute a racial group under the Act, ultimately concluding they do. |
| Clarke v. Eley (IMI) Kynoch Ltd. [1983] ICR 165 |
Timing for assessing ability to comply with a discriminatory condition in indirect discrimination claims. |
The court adopted the view that ability to comply is judged at the time the condition is applied, supporting the conclusion that the "no travellers" condition disproportionately affects nomadic gipsies. |
Court's Reasoning and Analysis
The court first considered whether the notices amounted to direct discrimination under section 1(1)(a). It concluded that the term "travellers" as used in the notices referred broadly to persons leading a nomadic lifestyle, including but not limited to gipsies, and thus did not single out gipsies as a racial group. Consequently, the notices did not constitute direct racial discrimination.
The court then examined the issue of indirect discrimination under section 1(1)(b), focusing on whether gipsies are a racial group defined by ethnic origins. Applying the criteria from Mandla v. Dowell Lee, the court found that gipsies, in the narrower, primary sense, constitute an identifiable ethnic group with a long shared history, cultural traditions, language elements, and a distinct social identity, despite some members having abandoned a nomadic lifestyle.
The court rejected reliance on statutory definitions of "gipsy" from the Highways Act 1959 and Caravan Sites Act 1968, which define the term in a non-racial, nomadic context unrelated to racial discrimination law.
Regarding the elements of indirect discrimination, the court found that the "no travellers" condition disproportionately affects gipsies (sub-paragraph (i)) and that this condition causes detriment to those who cannot comply (sub-paragraph (iii)). However, the court declined to decide on the justification element (sub-paragraph (ii)) due to insufficient evidence and remitted this issue for determination by the lower court.
The court also reviewed the evidence and findings of fact made by the trial judge, expressing disagreement with the conclusion that gipsies are not an ethnic group. The appellate judges found the expert and witness evidence credible and sufficient to establish the ethnic identity of gipsies.
Holding and Implications
The court ALLOWED THE APPEAL, setting aside the County Court's order and remitting the case to determine whether the indirect discrimination was justifiable under section 1(1)(b)(ii) of the Race Relations Act 1976.
The decision means that the question of whether the Defendant's notices unlawfully discriminate indirectly against gipsies on racial grounds remains open and must be further examined at first instance. No definitive ruling was made on justification or remedies at this stage. No new precedent was established beyond clarifying the application of the ethnic group definition to gipsies and the interpretation of "travellers" in the context of direct discrimination.