05 September 2009

Mandla's Ethnicity

In a quickly moving story, Politics.co.uk reported on Wednesday, " BNP forced to pay legal costs in white membership case" explaining that the Equality and Human Rights Commission were seeking an injunction against three officers of the BNP since, in its view, the eligibility for membership breaches the Race Relations Act 1976.

The article went on to report that the BNP's "2005 constitution states that: ""Membership of the BNP is strictly defined within the terms of, and our members also self define themselves within, the legal ambit of a defined 'racial group' this being 'indigenous caucasian' and defined 'ethnic groups' emanating from that race as specified in law in the House of Lords case of Mandla V Dowell Lee (1983).""

So, what is an 'ethnic group' according to Mandla (Sewa Singh) v Dowell Lee [1982] UKHL 7?

Well, Lord Fraser of Tullybelton said,

"For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: — (1)a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion, different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.

A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.

If the BNP really accept the law on this matter then if someone applied for membership who was not white then they would accept them. More relevant perhaps, if someone who was not white claimed that they were Anglo-Saxon, since an ethnic group is capable of including converts, they couldn't object.

The story has moved on and the BNP are stating that they will change their membership rules. I'd be curious what they are ... if the BNP were smart, and some of them certainly are, they'd use this as a Clause 4 opportunity.

Another aspect of the Mandla case that I found fascinating was the following where Lord Fraser makes the obiter comment, "... within the human race, there are very few, if any, distinctions which are scientifically recognised as racial."

For a long time I've drawn the distinction between objective reality and subjective reality. For a long time I've been of the opinion that either there are as many races as there are people (taking into account identical twins) or there isn't such a thing as race. I refuse to subordinate myself to such a crude demarcation as skin colour when it comes to science. However, I thought that I was quite alone in this view. It isn't something that is particularly easy to work into a conversation. Anyway, I was quite pleased that someone in the judiciary is of this opinion.

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