548

Tate & Lyle v. G.L.C. (H.L.(E.)) [1983]

LORD BRIDGE OF HARWICH. My Lords, I have had the advantage of .
reading in draft the speech delivered by my noble and learned friend, Lord
Templeman. I agree both with his reasoning and with his conclusions and
accordingly concur in the orders which he proposes.

Appeal so far as relating to first

respondents allowed with costs in
House of Lords and courts below, B
such costs to include costs ordered
to be paid by appellants to second
respondents by House of Lords and
by Court of Appeal pursuant to its
order of May 28, 1982. Orders of
Forbes J. of May 15, 1980, and May
22, 1981, restored with variations ^
that damages in respect of additional
dredging costs and interest thereon
until judgment be reduced by 25 per
cent.
Appeal so far as relating to second
respondents dismissed with costs. D

Solicitors: Ingledew Brown Bennison & Garrett; Head of Legal Branch,

Director-General's Department, Greater London Council; Solicitor, Port of
London Authority.
M. G.
E

[HOUSE OF LORDS]

MANDLA (SEWA SINGH) AND ANOTHER . APPELLANTS

r
AND
DOWELL LEE AND OTHERS RESPONDENTS

1983 Feb. 28; Lord Fraser of Tullybelton, Lord Edmund-Davies,

March 1, 2; 24 Lord Roskill, Lord Brandon of Oakbrook
and Lord Templeman
G
Discrimination, Race—Racial group—Sikh—Refusal to admit Sikh
as pupil of private school—Whether discrimination on ground
of " ethnic . . . origins "—" No turban " rule—Whether com-
pliance possible—Whether refusal to waive rule " justifiable "
—Race Relations Act 1976 (c. 74), ss. 1 (1) (b), 3 (1)
The first and second plaintiff, father and son, were Sikhs
and, in accordance with their tenets, wore turbans over their JT
unshorn hair. The first defendant, the headmaster of a school
owned by the second defendant, refused to admit the son as
a pupil at the school because the plaintiffs would not agree
to the son cutting his hair and ceasing to wear a turban to
 549
2 A.C. Mandla v. Dowell Lee (H.L.(E.))
comply with the school rules as to uniform. The plaintiffs
A brought an action for a declaration that the defendants had
committed an act of unlawful discrimination against the plain-
tiffs within the meaning of the Race Relations Act 1976. The
judge dismissed the action holding, inter alia, that there had
been1 no discrimination contrary to section 1 (1) (b) of the
Act as Sikhs were not a racial group. The Court of Appeal
dismissed the plaintiffs' appeal.
On appeal by the plaintiffs: —
B Held, allowing the appeal, (1) that any discrimination
against the plaintiffs could only be contrary to section 1(1) (b)
of the Race Relations Act 1976 if they were members of a
" racial group " defined by reference to ethnic origins as pro-
vided by section 3 (1) of the Act; that " ethnic . . . origins "
in the context of that provision meant a group which was
a segment of the population distinguished from others by a
sufficient combination of shared customs, beliefs, tradition s and
C characteristics derived from a common or presumed common
past, even if not drawn from what in biological terms was a
common racial stock, in that it was that combination which
gave them an historically determined social identity in their
own eyes and in those outside the group; that Sikhs were
in that sense a racial group defined by reference to ethnic
origins for the purpose of the Act, although they wen; not
biologically distinguishable from the other peoples of the
D Punjab (post, pp. 560B-D, G—561A, 562C-O, 564B-E, 565B-E,
568A-D, 569D-H).
Dictum of Richardson J. in King-Ansell v. Police [1979]
2 N.Z.L.R. 531, 543 applied.
(2) That the plaintiffs had been discriminated against within
the meaning of section 1 (1) (b) of the Act since (a) the word
" can " in sub-paragraph (i) thereof meant " can in practice "
or " can consistently with the customs and cultural conditions
E of the racial group " and therefore the " No turban " rule
was not one with which the second plaintiff could in the
relevant sense comply (post, pp. 565H—566B, 568A-D, 570A);
(b) the defendants could not in the circumstances justify their
conduct for " justifiable " in sub-paragraph (ii) connoted that it
was justifiable without regard to the ethnic origins of the person
in question, and it was the very fact that the turban was a
manifestation of the second plaintiff's ethnic origins that was
F relied on as justifying the refusal to admit him as a pupil at
the school (post, pp. 566F-H, 568A-D, 570A-B).
Price v. Civil Service Commission [1977] 1 W.L.R. 1417,
E.A.T. applied.
Per curiam. The kind of justification that might fall within
section 1 (1) (b) (ii) would be one based on public health (post,
pp. 566H—567A, 568A-D).
Panesar v. Nestli Co. Ltd. (Note) [1980] I.C.R. 144, C.A.
G considered.
Decision of the Court of Appeal [1983] Q.B. 1; [1982] 3
W.L.R. 932; [1982] 3 All E.R. 1108 reversed.
The following cases are referred to in the opinion of Lord Fraser of
Tullybelton:
Ealing London Borough Council v. Race Relations Board [1972] A.C.
H
342; [1972] 2 W.L.R. 71; [1972] 1 All E.R. 105, H.L.(E.).
1
Race Relations Act 1976, s. 1: see post, pp. 559H—560B.
S. 3 (1): see post, p. 560F-H.
550
Mandla v. Dowell Lee (H.L.(E.)) [1983]
King-Ansell v. Police [1979] 2 N.Z.L.R. 531.
A
Panesar v. Nestli Co. Ltd. {Note) [1980] I.C.R. 144, C.A.
Price v. Civil Service Commission [1977] 1 W.L.R. 1417; [1978] I.C.R.
27; [1978] 1 All E.R. 1228, E.A.T.

The following additional cases were cited in argument:

Clayton v. Ramsden [1943] A.C. 320; [1943] 1 All E.R. 16, H.L.(E.).
National Vulcan Engineering Insurance Group Ltd. v. Wade [1979] Q.B. g
132; [1978] 3 W.L.R. 214; [1978] I.C.R. 800; [1978] 3 All E.R. 121,
C.A.
Ojutiku v. Manpower Services Commission [1982] I.C.R. 661, C.A.
Seide v. Gillette Industries Ltd. [1980] I.R.L.R. 927, E.A.T.
Singh v. Rowntree MacKintosh Ltd. [1979] I.C.R. 554, E.A.T.
Steel v. Union of Post Office Workers [1978] 1 W.L.R. 64; [1978]
I.C.R. 181; [1978] 2 All E.R. 504, E.A.T. r
Tuck's Settlement Trusts, In re [1978] Ch. 49; [1978] 2 W.L.R. 411; ^
[1978] 1 All E.R. 1047, C.A.
APPEAL from the Court of Appeal.
This was an appeal, by leave of the House of Lords, by the appellants,
Sewa Singh Mandla and Gurinder Singh Mandla, an infant suing through
Sewa Singh Mandla, his father and next friend, from the judgment dated D
July 29, 1982, of the Court of Appeal (Lord Denning M.R., Oliver and
Kerr LJJ.) affirming a decision of Judge Gosling sitting at Birmingham
County Court dismissing the appellants' claim for, inter alia, a declaration
that the respondents, A. G. Dowell Lee and Park Grove Private School
Ltd. being respectively the headmaster and owner of Park Grove School,
Birmingham, had committed an act of unlawful discrimination against the
appellants within the meaning of the Race Relations Act 1976, and damages. ^
The facts are set out in the opinion of Lord Fraser of Tullybelton.
Alexander Irvine Q.C. and Harjit Singh for the appellants. The main
issue before this House is: (1) do individual Sikhs have ethnic origins?
They plainly have and therefore (2) is the Sikh community a racial group
within the meaning of section 3 (1) of the Race Relations Act 1976 defined p
by reference to " ethnic . . . origins "? If the answer to (2) is in the
affirmative the appellants were the victims of indirect discrimination because
the respondent was imposing a condition that the " turban may not be
worn " where the proportion of Sikhs who could comply with that con-
dition would be considerably smaller than the proportion of non-Sikhs
who could comply with it (section 1 (1) (6) (i) ) and was a condition which
he could not show was justifiable (section 1 (1) (b) (ii) ). ®
On the meaning of " racial group" defined by reference to ethnic
origins there are two views: (a) the narrow racial view; (b) the broad
cultural view. In the appellants' submission (b) is the correct view. The
Court of Appeal, however, favoured the narrow racial view that the word
"ethnic" meant pertaining or peculiar to race: [1983] Q.B. 1, 9, 10, 15,
22. Lord Denning M.R. (p. 9G) asked, " Why are ' the Jews ' given as the H
best-known example of ' ethnic grouping'? What is their special charac-
teristic which distinguishes them from non-Jews? " He states that in his
view it is a racial characteristic. But if Oliver and Kerr L.JJ. are right in
 551
2 A.C. Mandla v. Dowell Lee (H.L.(E.))
. their view of what constitutes a " racial group " Jews are not an ethnic
group either.
The broad cultural construction for which the appellants contend is that
the words " ethnic origins " in the statute connote a distinct community of
persons who regard themselves and are regarded by others as such as a dis-
tinct community by reason of such factors as a shared ^history, religion,
language and literature, family, social and personal customs and manners,
B so that they have a separate ethnic or communal identity. This contention
rests on (i) the fact that in the context of the Act the words " ethnic
origins " must be given an independent meaning and value: and should not
be given a racial constituent since the group of persons defined by race is a
separate part of the definition; (ii) the broad definition given to " ethnic " in
the Supplement to the Oxford English Dictionary (1972). There is high
judicial authority to support the above argument. In 1979 the New Zea-
L
land Court of Appeal in King-Ansell v. Police [1979] 2 N.Z.L.R. 531 held
that Jews have a common ethnic origin. This decision came to the appel-
lants' notice after judgment was given by the Court of Appeal in the
present case. The appellants adopt what was said in that case on what
constitutes the distinguishing features of an ethnic group or of the ethnic
origins of a group. It is true that the purpose of the Act there under
D consideration (the New Zealand Race Relations Act 1971) was to imple-
ment the provisions of the International Convention on the Elimination of
All Forms of Racial Discrimination (1969) (Cmnd. 4108). This appears
from the long title to the Act. There is no reference to the Convention
in the Race Relations Act 1976 albeit the Convention was ratified by the
United Kingdom in 1969. There is a presumption that the Crown legislates
in accordance with its treaty obligations rather than against them. In any
E
event, where as here, the language of the Convention is in almost precisely
the same terms as that of the statute under consideration by the court there
is no need for application of the presumption. [Reference was made to
articles 1, 2 and 9 (1) of the Convention.] The language of the Conven-
tion and the preceding declaration is such that the Act of 1976 should be
given a broad and purposive construction in accordance with the intentions
F of the Convention. To revert to the King-Ansell case [1979] 2 N.Z.L.R.
531, apart from the Convention the New Zealand Court of Appeal was
entitled to come to the conclusion that it did in view of modern dictionary
definitions of the relevant words in the New Zealand Act.
In holding that the words " ethnic or national origins " in section 3 (1)
of the Race Relations Act 1976 were used as a racial concept, the Court
of Appeal in the present case rendered those words in the statutory defini-
tion of " racial group" nugatory and meaningless. There is no inter-
pretation clause which purports to impose such a meaning and no linguistic
considerations derived from the wording of other parts of the Act which
would justify such an imposition. The Court of Appeal construed the
words " ethnic origins " in section 3 (1) too narrowly and erred in using
the 1934 definition of the word " ethnic " in the Oxford English Dictionary
H in preference to its more modern meaning and usage in the 1972 Supple-
ment to the dictionary. Had the latter definition been used, the court
would have appreciated that the words include cultural, linguistic and
religious traditions.
552
Mandla v. Dowell Lee (H.L.(E.)) [1983]
There is no authority of this House on the meaning of the words .
" ethnic origins." The decision of this House in Ealing London Borough
Council v. Race Relations Board [1972] A.C. 342 was directly relevant
only to " nationality " and " national origins." The word " nationality "
was added to the statutory definition of a group as a result of that decision.
In the Ealing case [1972] A.C. 342, 365E-G, Lord Cross of Chelsea said
that the words " national origins " suggest a connection subsisting at the
time of birth between an individual and a group of people belonging to a B
particular nation. This is right. Similarly, the expression " ethnic origins "
suggests a connection subsisting at the time of birth between an individual
and a group of people who can be described as an ethnic group. What the
statute supposes is a group of people each of whom possesses the same
ethnic origins and are defined as a group by reference to that fact. The
two forms of discrimination give guidance in this context. The class of
persons protected by section 1 (1) (a) must be the same class as is pro-
tected by section 1 (1) (b). If this were not so the beneficiaries would be
different according to whether the discrimination was direct or indirect.
Section 1 (1) (b) (i) is to be read in conjunction with the definition of
" racial group " in section 3 (1). The words in section 3 (1) must be of
the racial group in question, that is the racial group which it is said to be
disproportionately affected by the requirement or condition complained j)
about. All members of the group have this connection at birth. If Sikhs
do constitute such a group the Sikh who acquires Sikh ethnic origins
through a parent or parents at birth does not cease to have those origins
should he cease in his lifetime to belong to the Sikh community. So also,
a convert to the Sikh community would by definition not have Sikh ethnic
origins because he had become a Sikh subsequent to his birth but his
children would have Sikh ethnic origins because they would be connected E
with the Sikh ethnic group upon birth. The possibility of converts or
apostates is not inconsistent with a group being a group defined by refer-
ence to ethnic origins. The statutory group at any one time is the group
of persons who acquire those characteristics at birth.
In section 1 (1) (b) (ii) each of the words " colour, race " etc. is used
separately in its popular sense, but the racial concept of inherited physical p
attributes should not affect the meaning of any of these expressions. The
concept of an ethnic group connotes a complex of attributes which makes
the group distinctive in character from those not in the group. This
concept is quite separate from the popular meaning of " race." As to
the word " defined" in section 3 (1), it means defined by society or
socially defined, rather than defined in the dictionary sense. The concept
of a group defined by ethnic origins is that it is a group which regards "
itself and is regarded by the rest of society as constituting a distinctive
group by reason of shared ethnic origin.
If the above argument be accepted then it is necessary to consider
the meaning of the word " can " in section 1 (1) (b) (i) and the word
" justifiable " in section 1 (1) (b) (ii). As to the meaning of " can," in
accordance with the meaning of " racial group" defined in relation to H
ethnic origins, " can " means what is possible or feasible having regard to
what is consistent with membership of that group. It is wrong in the
present context to equate " can " with physical possibility. Reliance is
 553
2 A.C. Mandla v. DoweU Lee (H.L.(E.) )
. placed on Price v. Civil Service Commission [1977] 1 W.L.R. 1417 where
upon identical wording in the Sex Discrimination Act 1975 " can " was
construed to mean " can practically," so that a requirement that an
applicant for a post should be between the ages of 17 and 28 was held
to constitute sex discrimination against married female applicants, since
family commitments in that age group resulted in fewer married women
being able to take on full time employment. Married females were there-
B fore treated as a group for the purposes of the Act of 1975. In so far
as the Price case [1977] 1 W.L.R. 1417 was a case of discrimination, it
would lead to a manifestly absurd inconsistent result if the word " can "
was held to have one meaning in one Act dealing with one type of dis-
crimination and another meaning altogether in another Act dealing with a
different type of discrimination. Thus " can " means what is practicable
or feasible having regard to membership of the group in question.
^ As to " justifiable," if a prima facie case of indirect discrimination
because of the disproportionate impact of the " no turban rule " has been
established, can that rule be shown to be justifiable on grounds that do not
have regard to the ethnic origin of the Sikhs? The answer is plainly in the
negative. The respondent's position is incapable in the context of this Act
of being justifiable because he regarded the boy's manifestation of his
D ethnic origins, that is the wearing of his turban per se objectionable,
because it was a challenge to the religious or cultural character of the
respondent's school. In seeking to justify, the respondent is having regard
to the boy's ethnic origins. The object of the Race Relations Act 1976
is cultural diversity in an atmosphere of tolerance and not one of enforcing
conformity.
The ordinary and natural meaning of the word " justifiable " is that the
" conditional requirement is right, proper and necessary in all the circum-
stances irrespective of the race, colour, nationality or ethnic or national
origins of the person concerned: see Steel v. Union of Post Office Workers
[1978] 1 W.L.R. 64.
In so far as Oliver and Kerr L.JJ. have construed or purported to
construe the word " justifiable " in a purely racial context, they have given
p the word a strained, unnatural and extended meaning. There is nothing
in the legislative context to warrant such narrow, special or racial meaning.
Finally, in the context of justifying what is prima facie discriminatory, one
must weigh the reasons which the discriminator advances (and these must
be good and adequate reasons) against their discriminatory effect: Ojutiku
v. Manpower Services Commission [1982] I.C.R. 661. [Reference was
also made to Singh v. Rowntree MacKintosh Ltd. [1979] I.C.R. 554.]
G
The respondent headmaster in person. In King-Ansell v. Police [1979]
2 N.Z.L.R. 531 evidence in the court below had been given by a social
anthropologist who had stated that there was no scientific basis for the
concept of race. This raised a difficulty for the New Zealand Court of
Appeal in allotting meanings to the terms used in the New Zealand Race
Relations Act 1971 since it is a statute which refers to racial discrimina-
H tion. The concept of " race " is a valid concept and a considerable amount
of discrimination, both direct and indirect, takes place on racial grounds.
The concept of race as seen by the man in the street is based on different
external features of human beings. The New Zealand Race Relations Act
554
Mandla v. Dowell Lee (H.L.(E.) ) [1983]
does not appear to have any provision or draw the same distinction as that .
found between section 5 (1) (a) and section 5 (1) (b) of the Race Relations
Act 1976.
As to the International Convention on the Elimination of All Forms of
Racial Discrimination, it is at pains to point out not that different racial
characteristics do not exist but that not one race is superior to another.
It stresses racial discrimination and deals with racial segregation. It does
not concern itself anywhere with matters of religion or culture. Nowhere B
does it suggest that an ethnic group covers a religious or cultural group.
Article 4 of the Convention would not be lawful under the Act of 1976
because it would entail positive discrimination.
As regards the spirit of the Race Relations Act 1976, there is nothing in
the statute to suggest that it is concerned with cultural diversity; what it
emphasises is race. There is no justification for extending the meaning _,
of the Act beyond what it states. The proper way for the appellants to
achieve their object is to seek the amendment of the Act by legislation.
It is not disputed that the phrase " ethnic origins " in section 3 (1) of
the Act of 1976 should be given its ordinary and natural meaning: see
also the observations of Oliver L.J. [1983] Q.B. 1, 15A-B. Further, the
ordinary sense of the word should be ascertained by the use of the Oxford
English Dictionary (Halsbury's Laws of England, 3rd ed., vol. 36 (1961), D
para. 590).
As was pointed out by the judge in the county court and Lord Denning
M.R., the Oxford English Dictionary records two distinct meanings for the
adjective " ethnic " : A.adj 2: " Pertaining to race; peculiar to a race or
nation; ethnological." To this was added in the 1972 Supplement: " A.adj
2: Also, pertaining to or having common racial, cultural, religious, or
linguistic characteristics, esp. designating a racial or other group within a
larger system." As to the word " origins " the relevant definitions are the
Oxford English Dictionary " sb (a) 1: The act or fact of arising or springing
from something; derivation, rise; beginning of existence in reference to its
source or cause." " 1 (b): In reference to a person: The fact of springing
from some particular ancestor or race; descent, extraction, parentage,
ancestry." " 2 (a): That from which anything arises, springs or is F
derived; source."
There would thus seem to be some six combinations of the meanings of
" ethnic " and " origins " to arrive at the definitions of " ethnic origins."
Of these the two most compatible would seem to be combination A: a
group defined by reference to " racial descent." Combination B: a group
defined by reference to: " a common cultural, linguistic or religious source." -,
Combined definition A. It is submitted that for a present day racial group
to be defined by reference to its " racial descent" there must have been a
high degree of in-group marriage (endogamy) over a large number of genera-
tions. The documentary evidence before the county court showed, inter
alia, considerable fluctuations in Sikh numbers due to conversion and lapsing
between 1853 and 1931 (excerpt from the 1931 census of India). Calcula-
tions based on encyclopedic data on populations showed that 46 per cent. H
of present day Sikhs were descended from Hindus at the beginning of the
twentieth century. The above evidence shows conclusively that the bio-
logical identity of Sikhs, Hindus and Muslims in the Punjab area, coupled
 555
2 A.C. Mandla v. Dowell Lee (H.L.(E.))
with the high religious conversion rate, makes it impossible to define the
group " Sikhs " by reference to their " racial descent" from any past race
or racial group.
As regards definition B, the evidence shows that there is no single
cultural feature which can be used exclusively to define the group " Sikhs "
except adherence to the Sikh religion. The appellants have proposed a
wider definition for " ethnic origin " using the meaning of the words in
B combined definition B above. Thus in paragraph 20 of their printed case
they contend that the word " ethnic " is not restricted to blood relationships
but extends to groups with common cultural links, with a strong element of
historical continuity, but not necessarily entailing genetic identity, the critical
factor being that, despite any inward or outward movement the group
retains its group identity. It is not disputed that the Sikhs would qualify
as a group of ethnic origin under this wide definition, but such a combina-
tion of optional cultural factors such as language, history, beliefs, customs,
costumes and ceremonies would embrace many groups which the Race
Relations Acts were clearly not intended to protect on racial grounds, such
as: Benedictine monks (founded A.D. 529) and Freemasons (founded A.D.
1400). These are two groups defined by common cultural links, and long
history, but not genetic identity. The man in the street would not consider
D either monks or masons as racial groups. The correct approach to the
meaning of " ethnic origins " in the Race Relations Act 1976 is to consider
first the equivalent definition in the Race Relations Act 1965 viewed in the
light of its long title where the phrase was first used in a less ambiguous
context and then secondly, by considering a group which Parliament must
have intended to protect, but which would not be clearly included in the
definitions of " race" and " national origins," but which nevertheless
E would be included under the definition " group of ethnic origins." Section 1
(1) of the Act of 1965 provides, " It shall be unlawful for any person . . . to
practise discrimination on the ground of colour, race, or ethnic or national
origins against persons seeking access . . . " The long title of the Act pro-
vides, " An Act to prohibit discrimination on racial grounds in places of
public resort; to prevent the enforcement or imposition on racial grounds of
F restrictions on the transfer of tenancies; to penalise incitement to racial
hatred; and to amend section 5 of the Public Order Act 1936." All three
provisions in the long title are racial in character and therefore, the four
grounds referred to in section 1 (1) should be construed racially. Further,
" ethnic origins " and " national origins " were added to " colour " and
" race " in order to include groups whose racial characteristics were differ-
ent from other groups, but who did not conform clearly to the main
® biological racial groups, in order to avoid difficulty of definition and proof.
The most obvious case of a group falling into this category, but nevertheless
subjected to centuries of discrimination and hatred, was the Jewish group,
regarded by themselves as a religion, but regarded by many others as a race.
It was unthinkable that Parliament would have passed a. Race Relations
Act which did not afford protection for the Jews. The Oxford English
JJ Dictionary defines Jew as " 1. A person of Hebrew race; an Israelite."
The definition in the 1972 Supplement of the dictionary is " 1. A person
of Hebrew descent; one whose religion is Judaism; an Israelite."
The dual (racial and religious) character to the definition of the Jewish
556
Mandla v. Dowell Lee (HX.(E.)) [1983]
group is supported by Clayton v. Ramsden [1943] A.C. 320; In re Tuck's
A
Settlement Trusts [1978] Ch. 49 and Seide v. Gillette Industries Ltd.
[1980] I.R.L.R. 427. From the above cases it is plain that the courts
have no doubts as to Jewish " race " or Jewish " blood," except in so far
as, in a particular instance, there is doubt as to the extent of its attenuation
by intermarriage. The phrase " ethnic origin " was included in section 3 (1)
of the Acts of 1965 and 1976 to cover groups which had an undoubted
racial character, but which might be difficult to prove as constituting a B
clearly separate " race " biologically. The phrase is neither nugatory nor
meaningless. This view is supported by Lord Cross of Chelsea in Ealing
London Borough Council v. Race Relations Board [1972] A.C. 342, 366B.
The Oxford English Dictionary defines " Sikh " as " 1. A member of a
military community belonging to the Punjab, where it was originally
established as a religious sect by Nanak Shah in the early part of the 16th
c
century." Sikhs are without dispute a group defined with reference to
religion and religious origins, but they are not a group defined by reference
to: (a) " race " in the ordinary usage of the word, as shown by the dictionary
references to " a military community " and a " religious sect." (b) " Racial
descent," due to their high degree of interconversion with Hindus, or
(c) " common cultural, linguistic or religious source," since, with the excep-
tion of religion, they share all other cultural, racial and linguistic features in JJ
common with Punjabis of other religions; and the Sikh community has
always constituted a small minority in the Punjab.
The first subsidiary issue—the meaning of " can " in section 1 (1) (b) (i).
The respondent does not dispute that the word " can " should be given its
ordinary common natural meaning for the purposes of the Act. There are
two principal meanings given by the Oxford English Dictionary: " B3 To
know how (to do anything); to have learned, to be intellectually able. . . . " "
This passes imperceptibly into the current sense: " 4 to have the power,
ability or capacity. (Said of physical as well as mental, and of natural as
well as acquired ability.) " A modern example is given: " Who can run
farthest? " These two meanings constitute the strict meaning given to
" can " by the county court judge and Kerr L.J. The second relevant
meaning is given in the 1972 Supplement to the Oxford English Dictionary. p
The colloquial use of " can " instead of the correct" may " : " B6 (b) To be
allowed to, to be given permission to." In common parlance this colloquial
use of " can " is modified by a range of explicit or implicit constraints;
(a) can morally, (b) can socially, (c) can conveniently or (d) can by prefer-
ence. The construction of the word " can " will be determined by which of
the above variations are admitted by this House. It is submitted that" can "
for the purpose of section 1 (1) (b) (i) of the Act should be construed "
strictly in the primary dictionary definitions to mean " can physically"
because: (a) "Words in a statute must be taken to be used correctly
and exactly, and the onus on those who assert that they are used loosely
or inexactly is a heavy one " : Halsbury's Laws of England, 3rd ed., vol.
36, para. 589. (b) The only clear and unequivocal line that can be drawn
in the range of meanings is that between " can physically " and the rest, JJ
(c) No specific or modified interpretation is given to " can " in section
78 (1) of the Race Relations Act 1976. (d) By virtue of Part IX the
Race Relations Act 1976 is a penal Act and the balance of probabilities
 557
2 A.C. Mandla v. Dowell Lee (H.L.(E.))
A used in the civil law should not apply. Further, any difficulty that arises
in the interpretation to be placed upon " can" in this Act stems from
the adoption of a cultural interpretation of "-ethnic." If a racial or near-
racial meaning is accorded to " group of ethnic origin," then the con-
ditions which prove discriminatory will be the physical and inescapable
ones associated with racial differences, about which there is no element
of choice. In the words of Kerr L.J. [1983] Q.B. 1, 24D-E, "In this
B statute, accordingly, the word ' can' in paragraph (b) (i) was in my
view intended to be contrasted with something approaching impossibility.
It was not intended to be measured against criteria of free will, choice, or
conscience."
The meaning of " justifiable" in section 1 (1) (b) (ii). The word
should be construed in its ordinary or common or popular sense: see
„ Halsbury's Laws of England, 3rd ed., vol. 36, paras. 587, 590. The follow-
ing dictionary definitions of " justifiable" and " just" are relied upon
as being the most appropriate: the Oxford English Dictionary " justifi-
able (a) 2: Capable of being legally or morally justifitjd, or shown to be
just, righteous, or innocent; defensible." " Just (a) 4: Having reasonable
or adequate grounds." The heavy burden placed on the discriminator
to show that the condition is necessary by Phillips J. in Steel v. Union of
D Post Office Workers [1978] 1 W.L.R. 64 has been lightened by the
subsequent decisions in National Vulcan Engineering Insurance Group Ltd.
v. Wade [1979] Q.B. 132; Singh v. Rowntree MacKintosh Ltd. [1978]
I.C.R. 554; Panesar v. Nestle Co. Ltd. (Note) [1980] I.C.R. 144 and
Ojutiku v. Manpower Services Commission [1982] I.C.R. 661, so that
the dictionary definitions of " justifiable" should be applied using the
F balance of probabilities only.
It has been suggested that the effect of the " no turban " condition
applied by the respondent would be to reduce the educational oppor-
tunities of Sikhs drastically. This, however, is a gross exaggeration since
(a) in accordance with sections 25 to 29 of the Education Act 1944 all
local authority (" county ") schools would be bound to admit Sikhs and
to permit them reasonable facilities for religious observances and instruc-
F tion. (b) To judge by the letter received by schools in answers to an
inquiry from the Commission for Racial Equality submitted in evidence
in this case, the great majority of Britain's public schools would welcome
Sikhs wearing turbans, (c) It is in evidence that the second appellant had
no difficulty in obtaining a place at an alternative independent school,
similar to Park Grove, saving that the wearing of turbans was permitted.
(d) The discriminatory effect on the second appellant of the " no turban "
condition was thus, and was likely to be, minimal.
The respondent relies on the following propositions in justification of
the school uniform and religious observance at Park Grove school: (a) the
school is a multi-racial school in a multi-racial area, (b) It is dependent
upon the approval and support of fee-paying parents of all racial groups.
(c) The ethos of the school is that it is a Christian school accepting all
H racial groups and social classes, and that every child will be treated
equally, regardless of its social class or racial origin, (d) School uniforms
have traditionally been a means of minimising the external differences
between races, religions and social classes, and have thus been a unifying
558
Mandla v. Dowell Lee (HX.(E.)) [1983]
factor in the life of the school, (e) In any teen-age society there tends .
to be " competitive fashion," and the existence of a sizeable group
identified by costume differences will tend to heighten any social tensions.
(f) The public image of the school, upon which recruitment depends, is
greatly influenced by the school uniform. The Christian character of
the school would not be accurately reflected by the inclusion of the non-
Christian turban as part of the uniform, (g) The spirit of the Education
Act 1944 is expressed in section 76: that as far as possible children should B
be educated in accordance with the wishes of their parents. The con-
ditions protecting the religious rights of children in the county schools in
sections 25 to 29 of that Act do not apply to independent schools, which
traditionally have had the right to require conformity to a particular
faith or religious practice as a condition of entry. It has been accepted
by this House in Ealing London Borough Council v. Race Relations
c
Board [1972] A.C. 342 and by the Court of Appeal in the present case
that religious discrimination is lawful. Nor is it contended otherwise by
the appellants in this present appeal, (h) It must therefore be reasonable
to make a condition on religious grounds in an independent school which
is in accord with the principle of " complete racial equality," unless the
discrimination places an unreasonable burden upon the appellants. This
particular burden was shown above to be minimal, (i) Upon balanc- D
ing a " reasonable condition " on the part of the respondent against a
" minimal inconvenience" on the part of the appellant, it is submitted
that the condition must be " justifiable" within the meaning of section
1 (1) (b) (ii) of the Race Relations Act 1976. (j) Upon the balance of
probabilities the traditional freedom of proprietors to lay down the rules
for religious conduct in independent schools outweighs the rights of parents
of different faith to stipulate deviations from those rules. ^
Irvine Q.C. in reply. The words which arise for construction in the
present case are to be found in social purpose legislation. The fact that
similar language is found in a penal statute does not mean that the canons
of construction relating to penal statutes should apply to the Race
Relations Act 1976. On the meaning of " ethnic origins" reliance is
placed upon the observations of Richardson J. in King-Ansell v. Police p
[1979] 2 N.Z.L.R. 531, 543. The appellants concede that there must
be limits to what constitutes an ethnic group, and that a shared history
and folk memory is probably essential. In conclusion, where there is a
clash of values between those of the Act and those of the school in the
interests of uniformity of dress the latter cannot override the former. For
an example of discriminatory conduct which was held to be " justifiable "
within the meaning of the Act: see Panesar v. Nestli Co. Ltd. (Note) ®
[1980] I.C.R. 144.
Their Lordships took time for consideration.

March 24. 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 Act of 1976"). For H
reasons that will appear, the answer to this question depends on whether
they are a group defined by reference to " ethnic origins."
The appellants are Sikhs. The first appellant is a solicitor in
 559
2 A.C. Manilla v. Dowell Lee (HX.(E.)) Lo'J F'ff"
v
' of Tullybelton
Birmingham and he is the father of the second appellant. T h e second appel-
A
lant was, at the material date, a boy of school age. T h e first respondent
is the headmaster of an independent school in Birmingham called
Park Grove School. T h e second respondent is a company which owns
the school, a n d in which the first respondent and his wife a r e 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
B as a pupil at Park Grove School, and he brought the boy to an interview
with the respondent. T h e first appellant explained that he wished his son
to grow u p as an orthodox Sikh, a n d 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. A t the interview, the
respondent said that wearing a turban would b e 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. T h e 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 h a d discriminated against him and his son on racial
grounds. T h e commission took up the case and they art; the real appellants
before your Lordships' House. T h e case clearly raises an important
question of construction of the Act of 1976, 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
E appeal. In the county court Judge Gosling held that Sikhs were not a racial
group, a n d therefore that there h a d been no discrimination contrary to the
Act of 1976. T h e Court of Appeal (Lord Denning M.R., Oliver and
Kerr L.JJ.) agreed with that view. T h e commission, using the name of the
appellants, now appeals to this House.
T h e main purpose of the Act of 1976 is to prohibit discrimination
p 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. T h e 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 a n d other things, and
by section 17 in the field of education. There can be n o doubt that, if
G there has been racial discrimination against the appellants in the present
case, it was in the field of education, a n d was contraiy to section 17 (a)
which makes it unlawful for the proprietor of an independent school to
discriminate against a person in the terms on which the school offers to
admit him as a pupil. T h e only question is whether any racial discrimina-
tion has occurred.
TT 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
560
of°TuU™eC!ton M a n d h v. Dowell Lee (HX.(E.) ) [1983)
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 B
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 sub-
section 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 C
his judgment on that point was not challenged in the Court of Appeal or
before your Lordships' House. The appellants' case in this House was
based entirely on " indirect" discrimination, that is, discrimination contrary
to paragraph (b) of section 1 (1). When the proceedings began the appel-
lants claimed damages, but that claim was not pursued before this House.
Having regard to section 57 (3) of the Act of 1976, it would have been
unlikely to succeed. They now seek only a declaration that there has been •"
unlawful discrimination 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 E
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
paragraph (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 H
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
 561
2 A.C. Mandla v. Dowell Lee (H.L.(E.)) Lor* Fraaer
of Tullybelton
were referred to various dictionary definitions. The Oxford English
A
Dictionary (1897 ed.) gives two meanings of "ethnic." The first is
" Pertaining to nations not Christian or Jewish; gentiles, heathen, pagan."
That clearly cannot be its meaning in the Act of 1976, because it is incon-
ceivable 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
B for the present purpose. The second meaning given in the Oxford English
Dictionary (1897 ed.) 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. [1983] Q.B. 1, 15H 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 Act of 1976, and that it did not apply to Sikhs
because they were essentially a religious group, and they shared their racial
D 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 Act of 1976 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
E
relevant distinctive biological characteristics (assuming that such charac-
teristics 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 respect-
p fully agree with the view of Lord Simon of Glaisdale in Ealing London
Borough Council v. Race Relations Board [1972] A.C. 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 Act of 1976) 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
Q 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 is rubbery and elusive language—understandably when the
draftsman is dealing with so unprecise a concept as ' race' in its
H popular sense and endeavouring to leave no loophole for evasion."
I turn, therefore, to the third and wider meaning which is given in the
Supplement to the Oxford English Dictionary (1972). It is as follows:
562
L
f'£ f^f. Mandla y. Dowell Lee (H.L(E.) ) [1983]
of Tullybelton
" pertaining to or having common racial, cultural, religious, or linguistic
characteristics, esp. designating a racial or other group within a larger A
system; . . ." Mr. Irvine, for the appellants, 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, j$
religious, or linguistic" would be enough to constitute an ethnic group.
That cannot be the sense in which " ethnic " is used in the Act of 1976, 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 C
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 experi-
ence 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 j->
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 Act of 1976,
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 com- E
munity. 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 p
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 G
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 JJ
to be consistent with the words at the end of section 3 (1): " 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
 563
2 A.C. Mandla v. Dowell Lee (H.L.(E.)) .L°*?, *'"«
v v
" of Tullybelton
. group either by birth or by adherence, and it makes no difference, so far
as the Act of 1976 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
B 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 and Scott's Greek-English Lexicon, 8th ed.
(Oxford 1897). I do not suggest that the meaning of the English word in
c
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 Act of 1976 should be construed
relatively widely, in what was referred to by Mr. Irvine as a broad, cultural/
D 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 Richard-
son 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 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
E 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.
p 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
Act of 1976, but the offence created by section 25 of tho 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
G that the New Zealand Act does not mention " nationality," and the Act
of 1976 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 p. 538 where, after referring to the meaning given by the
Supplement to the Oxford English Dictionary (1972), wliich I have already
JJ quoted, he says:
" 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
564
*-?'£ Fr».tr Mandla v. Dowell Lee (H.L.(E.)) [1983]
of Tullybelton
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 defini- "
tion and construed accordingly. However, subject to those qualifica-
tions, I think that for purposes of construing the expression ' ethnic
origins' the 1972 Supplement is a helpful guide and I accept it."
Richardson J. said, at p. 542:
" The real test is whether the individuals or the group regard them- g
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 the same learned judge said, at p. 543:
" a group is identifiable in terms of its ethnic origins if it is a segment C
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 p
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."
Neither the Act of 1976 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 (1969) (Cmnd.
G
4108). The Convention was adopted on March 7, 1966, and was signed
by the United Kingdom on October 11, 1966, subject to reservations
which are not now material. It was not ratified by the United Kingdom
until March 7, 1969. Under the Convention the States Parties under-
took, 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 H
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
Act of 1976 and in its predecessors in this country, and they are certainly
 565
2 A.C. Maiidia v. Dowell Lee (H.L.<E.)) ,L»'f, ?«««
of Tullybelton
. 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 rales of construction
applicable to legislation which gives effect to international conventions
because, for the reasons already explained, a strict or legalistic construc-
tion of the words would not, in any event, be appropriate.
The respondent admitted, rightly in my opinion, that, if the proper
B construction of the word " ethnic " in section 3 of the Act of 1976 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 character-
istics of the Sikhs. They were originally a religious community founded
about the end of the 15th 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 judge in the county court 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
15th century. They have a written language which a small proper-
ly tion of Sikhs can read but which can be read by a much higher
proportion of Sikhs than of Hindus. They were at one time politic-
ally supreme in the Punjab."
The result is, in my opinion, that Sikhs are a group defined by a refer-
ence to ethnic origins for the purpose of the Act of 1976, although they
are not biologically distinguishable from the other peoples living in the
E 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) (b) of the Act. That raises the two subsidiary questions
p I have already mentioned.

" Can comply "

It is obvious that Sikhs, like anyone else, " can " refrain from wear-
ing 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
Q Act of 1976, 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 require-
ment or condition if they are willing to give up their distinctive customs
and cultural rules. On the other hand, if ethnic means inherited or un-
alterable, as the Court of Appeal thought it did, then " can" ought
H logically to be read literally. The word " can " is used with many shades
of meaning. In the context of section 1 (1) (6) (i) of the Act of 1976 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,
566
Lord Fra.er Mandla v. Dowell Lee (H.L.(E.)) [1983]
x
of Tullybelton ''
but as meaning " can in practice " or " can consistently with the customs .
and cultural conditions of the racial group." The latter meaning was
attributed to the word by the Employment Appeal Tribunal in Price v.
Civil Service Commission [1978] I.C.R. 27, 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. B

" Justifiable "

The word "justifiable" occurs in section 1 (1) (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 C
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 per cent, boys and 25 per cent, 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 minimise external differences between races and social classes, to dis-
courage 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 E
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 p
Christian school, accepting pupils of all religions and races, and that he
objected to the turban on the ground that it was an outward manifesta-
tion 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 G
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 justifi-
able " 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 H
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
 567
2 A.C. Mandla v. Dowell Lee (H.L.(E.)) .*£'* £'«"'
of Tullybelton
A fall within that provision would be one based on public health, as
in Panesar v. Nestle Co. Ltd. (Note) [1980] I.C.R. 144, where the Court
of Appeal held that a rule forbidding the wearing of beards in the respon-
dent's chocolate factory was justifiable within the meaning of section
1 (1) (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.
B 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
c
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.

Final considerations
~ Before parting with the case I must refer to some observations by the
Court of Appeal [1983] Q.B. 1 which suggest that this conduct of the Com-
mission for Racial Equality in this case has been in some way unreasonable
or oppressive. Lord Denning M.R. at p. 13B merely expressed regret that
the commission had taken up the case. But Oliver L.J. at pp. 17H—18D
used stronger language and suggested that the machinery of the Act had
been operated against the respondent as " an engine of oppression." Kerr
E L.J. at p. 25B 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
p task, and no doubts its inquiries 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 com-
plaint of his treatment at the hands of the commission. He was specific-
ally asked by some of my noble and learned friends to point out any parts
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
G formed no part of his case. The lady who conducted the interview on
behalf of the commission 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 i:he usefulness of the
commission's activities, but its functions have been laid down by Parlia-
ment and, in my view, the actions of the commission itself in this case
H and of its official who interviewed the respondent on November 3, 1978,
were perfectly proper and in accordance 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
568
L or
. -2 f.'lsV Mandla v. Dowell Lee (H.L.(E.)) [1983]
ol Tullybelton
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 B
arrived, and I do not find it necessary or desirable to add any observa-
tions 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. D

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 F
fields was most widespread 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 discrimination 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 discrimina- F
tion 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 thosefieldsof 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 H
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. [His Lord-
ship read section 1 (1) and continued: ] The respondents are only willing
 569
2 A.C. Mandla v. Dowell Lee (H.L.(E.)) Lord Templeman
. 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
B 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 respondents 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 expres-
sion " ethnic origins " must be deduced from the Act. A racial group
means a group of persons defined by reference to colour, race, nationality
D 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
F 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
Q separate nation or as a separate nationality because itheir 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
TT 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.
570
Lord Templeman Mandla v. Dowell Lee (H.L.(E.)) 11983]
Gurinder Singh is a member of the Sikh community which qualifies as a
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 dis-
criminate. I also agree that the Race Relations Board were under a duty
properly to investigate the present complaint of discrimination and that JJ
their conduct was not oppressive.
I agree that the appeal should be allowed.
Appeal allowed.

Solicitors: Bindman & Partners; Sylvester Amiel & Co.

c
J. A. G.

[HOUSE OF LORDS]
D
MERKUR ISLAND SHIPPING CORPORATION . RESPONDENTS
AND
LAUGHTON AND OTHERS APPELLANTS

1982 Oct. 19, 20, 21; Sir John Donaldson M.R.,

Nov. 4 O'Connor and Dillon L.JJ. g
1983 March 14, 15, 16; Lord Diplock, Lord Edmund-Davies,
April 21 Lord Keith of Kinkel, Lord Brandon
of Oakbrook and Lord Brightman

Trade Dispute—Act in furtherance of—Procuring breach of con-

tract—Unlawful interference with trade—Secondary industrial
action—Dispute between owners and crew of ship—Ship on F
time charter—Port tugmen and lock-keepers refusing to let
ship sail—Whether blacking of ship actionable by owners at
common law—Whether owners entitled to injunction restrain-
ing blacking—Trade Union and Labour Relations Act 1974
(c. 52), s. 13 (as amended by Trade Union and Labour Rela-
tions (Amendment) Act 1976 (c. 7), s. 3 (2))—Employment
Act 1980 (c. 42), s. 17
Ships' Names—Hoegh A papa G
The plaintiff shipowners time-chartered the Hoegh A papa,
a Liberian registered ship, to charterers and she was sub-
sequently sub-chartered. The time charter provided that pay-
ment of hire should cease for time lost due to boycott of
the vessel in any port arising, inter alia, from the terms and
conditions on which members of the crew were employed and
that should she be prevented from work for any such reason J J
for more than 10 days the charterers should have the option
of cancelling the contract. There was also a provision that
" the captain shall prosecute his voyages with the utmost
dispatch." After a complaint from one of the crew of