Critiques of the UK Cases
It has
been argued that the 'Mandla' criteria could be applied to Muslims so
that they fit within the definition of 'ethnic origins'. [1] In particular, it is argued that the recently emergent British Muslim
community can be perceived as forming a distinct ethnic group within the
UK and thus should be covered by the Race Relations Act.
It has recently been argued that the fact that the courts in the UK have
protected some religious minorities as 'ethnic' but not others has created
a 'hierarchy of protection'. [2] It is further argued
that the development of the case law in the UK has been inconsistent,
resulting in inequity and a 'hierarchy of provisions afforded to different
ethnic minorities'. [3] A review of UK anti-discrimination
laws in 2000 studied the protection religious groups had received under
the Race Relations Act and concluded:
It seems anomalous that Muslims in Britain are protected in respect of dress codes only if they can show indirect discrimination, for example relying on Pakistani national origins on the ground that a considerably smaller proportion of Pakistanis than other national groups could comply with a particular dress requirement, because of their Islamic beliefs. This does not help Muslims who come from a country where Muslims are a minority. [4]
The 'Mandla' criteria would seem to allow some accommodation of contemporary sociological and anthropological debates about ethnic identity. However, there are gaps. The case reflects a 'structuralist-functionalist' approach to understanding ethnic identity which has been challenged recently by a 'social constructionist' approach that places more emphasis on inter-group relations and less stress on culture.
1. See Dobe 'Muslims, Ethnicity and the Law': http://www.spr-consilio.com/muslims.pdf
2. Open Society Institute Monitoring Minority Protection in the EU: The Situation of Muslims in the UK 2002 at page 94: www.eumap.org/reports/2002/content/10/826/pdfs/UK_7_body.pdf
3. Forum Against Islamophobia and Racism, Towards Equality and Diversity - Implementing the Employment and Race Directives: Response from the Forum Against Islamophobia and Racism London: FAIR 2002, page 13, quoted at page 94 of the Open Society Institute Report op cit.
4. Hepple QC, Coussey & Choudhury. Equality: A New Framework -Report of the Independent Review of the Enforcement of Anti-Discrimination Legislation Hart Publishing 2000 at page 47.
