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PROPOSED RACE DISCRIMINATION (JERSEY) LAW _______________
Lodged au Greffe on 5th March 2002 by the Legislation Committee
______________________________
STATES OF JERSEY
STATES GREFFE
150 2 0 0 2 P . 3 2
Price code: C
PROPOSITION
THE STATES are asked to decide whether they are of opinion -
(a ) to approve, in principle, the proposals to render unlawful racial discrimination as defined by law, as set out in
Parts A to F of the report of the Legislation Committee dated 5th March 2002, namely -
(i ) ra c ia l d is crimination to which the Law would apply (Part A);
(ii ) d is c rim ination in employment (Part B);
(ii i ) d is c r im ination in other areas (Part C);
(iv ) o th e r u n lawful acts (Part D);
(v ) g e n e r a l exceptions (Part E);
(v i ) in c it e m ent to racial hatred (Part F)
to g e th e r w ith the enforcement proposals as set out in Part G of the report;
(b ) to request that the necessary funding be included in the prioritisation process for 2003 and beyond; and, (c ) to charge the Legislation Committee to prepare the necessary draft legislation for approval by the States.
LEGISLATION COMMITTEE
Notes: 1. T h e Policy and Resources Committee's comments are to follow.
2 . T h e Finance and Economics Committee's comments are to follow. 3 . T h e Human Resources Committee's comments are to follow.
REPORT
In October 1996, the Policy and Resources Committee produced a report into the extent of racism and racial discrimination in Jersey. From the comments and detailed analysis in the October 1996 report, the conclusion drawn was that racist attitudes do exist in Jersey. In fact, in its findings, the report concluded that -
" A lth o u gh the Island does not have a problem of the magnitude experienced by some other jurisdictions, it is clear
from the available evidence that racial discrimination is not entirely absent from Jersey." (October 1996 Report, page 7.)
As a result of the 1996 report, a proposition went to the States charging the Policy and Resources Committee with two responsibilities -
(a ) to take necessary steps to implement appropriate legislation;
(b ) to encourage more enlightened attitudes through education and a promotional campaign.
The States accepted the proposition, and in accordance with paragraph (a) an officer was seconded with the specific task of drawing up a brief for the Law Draftsman. The primary tenets of the legislation are -
(a ) to render racial discrimination unlawful;
(b ) to prevent the dissemination of ideas and propaganda based on racial superiority;
(c ) to prevent activities inciting racial discrimination or hatred which falls short of constituting a breech of the
peace or other contravention of existing Jersey Law;
( d ) to proscribe organisations and propaganda activities promoting or inciting racial discrimination, and of
participation in the membership of such groups.
The elimination of racial discrimination and racism ought to be one of the primary functions of any decent government and, whilst one cannot legislate racist beliefs and attitudes out of existence, a legal framework which outlaws racism and racial discrimination is considered to be one of the starting points in any democratic and civilised community.
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted by the General Assembly of the United Nations on 7th March 1969 and brought into force on 16th April 1969. Jersey was included in H.M. Government's ratification of this convention. The CERD is the oldest and most widely ratified United Nations Human Rights Convention. Under the Convention, state parties, including Jersey, are pledged, amongst other particulars, to "engage in no act or practice of racial discrimination against individuals, groups or persons or institutions" and "to review government, national and local policies and to amend or repeal laws and regulations which create or perpetuate racial discrimination".
Article 9.1 of the convention provides for parties to the convention to submit regular reports regarding -
" th e legislative, judicial, administrative or other measures which they have adopted and which give effect to the
provision of [the] convention."
State parties are expected to include in their reports information regarding dependent territories for which they are responsible. The first report was approved by the Policy and Resources Committee on 3rd May 1994 for inclusion in H.M. Government's report to the United Nations. This report was presented to the States as R.C. 14/94. Further reports were submitted in August 1996, published as an Appendix to the Report and Proposition of the Policy and Resources Committee, P.213/96, and most recently updated as part of the United Kingdom Report examined in 2000 in Geneva and presented to the States in R.C. 2/2001. Among the concluding observations of the Human Rights Committee was the recommendation that -
"T h e a u thorities complete the current process of enacting legislation outlawing all racial discrimination".
Other international conventions, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), seek to guarantee that all human beings enjoy economic and cultural freedoms irrespective of nationality, place of origin, race or ethnicity. The United Nations Declaration of Human Rights says in Article 1 that"all human beings are born free and equal in dignity and rights" and, in Article 2 says that "everyone is entitled to all the rights and freedoms set forth in this declaration, without discrimination of any kind."
Also of significance in the discrimination field is the Human Rights (Jersey) Law 2000 adopted by the States on 8th February 2000 under projet number P.197/2000. This Law, which incorporates many of the provisions of the European Convention on Human Rights into Jersey law and which will be fully implemented in October 2002, provides, in Schedule 1 -
"Article 14 Prohibition of discrimination
T h e enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The Article 14 right to freedom from discrimination is not, however, free-standing, regulating as it does only discrimination in the "enjoyment of the rights and freedoms set forth in the Convention". A violation of the Convention must be established under Article 14 and another Article where the subject matter of the discriminatory treatment"relates to" or "falls within the scope of" or is "covered by" a right or freedom elsewhere guaranteed by the Convention. Furthermore, the utility of the Human Rights (Jersey) Law 2000 as a weapon against discrimination is limited by the concept of discrimination adopted by the convention organs. Violations of Article 14 are not generally found unless the discrimination at issue is direct and overt. In addition, the Human Rights (Jersey) Law 2000 is binding in the fuller sense only on public authorities. The protections afforded by the Human Rights (Jersey) Law 2000 are inferior, therefore, because of the parasitic nature of Article 14 and the under-developed nature of indirect discrimination under the Convention.
Rights and freedoms do not have any meaning unless they are deliverable. That is, they must be capable of being enforced, or in other words, rights and freedoms exist only if we have the means and capacity to take positive steps not only to ameliorate an individual's experience of discrimination and racism but to reduce the likelihood of its recurrence.
A comparative analysis of measures to combat racial discrimination in the member states of the European Union shows that few have anything approaching the conceptual sophistication and detailed enforcement apparatus of the British legislation. Thus, in December 1991, the European Council asked ministers of the member states and the Commission to increase their efforts to combat discrimination and xenophobia and to strengthen the legal protection for third country nationals in the territories of the member states. Article 39 (formerly Article 48) of the treaty establishing the European Community provides -
(a ) Fr eedom of movement for workers shall be secured in the community.
(b ) Su ch freedom of movement shall entail the abolition of any discrimination between workers of member states
as regards employment, remuneration and other conditions of work and employment.
Under Protocol Three to the Treaty of Accession, the insular authorities must apply the same treatment to all natural and legal persons of the community.
During the post-war period Jersey, in common with many other societies, looked for immigrant labour in order to fuel expansion in the tourism and agricultural industries. The push/pull factors of lack of job opportunities at home and the promise of employment and improved living standards in Jersey attracted a significant number of migrants. This immigration process continues to the present day and includes the importation of labour to fill jobs where local skills are not to be found in sufficient numbers, for example in the retail, finance and public sectors as well as the more traditional industries. Diversity is one of our strengths as a community, and all Jersey citizens should be encouraged to play a full part in society and have their inalienable rights protected.
The purpose of this report and proposition is to seek the agreement of the States to draft legislation which would implement the recommendations of the Race Relations Working Party Report (R.C. 46/99) together with the enforcement procedures. While anti-discrimination law is not the only element in policy to promote equal opportunity, it is nevertheless a prerequisite. The specific objectives of the Committee have been to develop an accessible legislative framework, to spur compliance with the Law and to ensure that Jersey complies with its international obligations. The proposals do not treat legislation as a panacea. The recommendations are for an inclusive, non-adversarial approach, which avoids unnecessary bureaucratic requirements, while ensuring that the law is effectively enforced. The intention is that individuals should be free to seek redress for the harm they have suffered as a result of unlawful discrimination, through procedures which are fair, inexpensive and expeditious, and remedies which are effective. The strategies proposed seek to address particular problems, whether in education, housing, employment, services or commerce, based on the simple principles of fair play. They cover both direct and indirect discrimination and the scope of unlawful discrimination extends to both public and private sectors.
The legislative proposals should be interpreted according to the underlying purpose of protecting the dignity, autonomy and worth of every individual and the promotion of good relations between different groups. However, when discriminatory actions are sufficiently serious in their impact on the community or any part of it, there are criminal sanctions. The proposals therefore include a mixture of both civil and criminal law.
RACIAL DISCRIMINATION (JERSEY) LAW Part A - Racial discrimination to which the Law would apply
A1. It w ould be unlawful to racially discriminate either directly or indirectly in any way (e.g. positive discrimination
would also be unlawful).
A2. R a c ial discrimination
(a ) D irect discrimination
D ir ec t d is c rim ination would occur when someone was treated less, or more, favourably on racial grounds
than others are, or would be, treated in similar circumstances.
Wh en s o m e o n e was segregated from others on racial grounds this would also be direct discrimination. Racial
abuse and harassment would also be unlawful direct discrimination if it occurred in circumstances covered by the law.
E x a m ple
I f a b la c k w o m a n is turned down for a job as a shop assistant and told there are no vacancies, then a
white woman with equivalent qualifications is offered the job a short while later, the black woman has been directly discriminated against.
(b ) I n direct discrimination
In d ir e c t d is c r imination would occur when a condition or requirement was applied equally to people of all
racial groups, but many fewer people of a particular group were able to comply with it. Such indirect discrimination would be unlawful when it cannot be shown to be justifiable other than on racial grounds.
E x a m ple
• A ru le ab o u t clothing or uniforms which disproportionately disadvantages a racial group and cannot be justified.
• A n e m p lo y e r who requires higher language standards than are needed for safe and effective performance of the job.
A3. V ic tim isation
It w o u ld also be unlawful under the Law to treat someone less favourably than others, because they have taken a
case of racial discrimination, or given evidence relating to a case, or alleged that discrimination has occurred, or where the discriminator knows that the person intends to do any of these things, or suspects that the person victimized has done, or intends to do any of them.
T h e re m ust, however, be protection from false/malicious allegations not made in good faith. A4. R a c ial definitions
(a ) r acial grounds means any of the following grounds, namely colour, race, nationality or ethnic or national
origins;
(b ) r a cial 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.
( c ) r acial hatred means hatred against a group of persons in Jersey defined by reference to colour, race,
nationality (including citizenship) or ethnic or national origins.
Part B - Discrimination in employment
It is suggested that the definitions of employer, employee/worker should mirror those used in the Employment and Social Security Committee Minimum Wage/Employment Laws. Such definitions should be as broad as possible and include agency workers, casual labourers, temporary contracts, and home-workers.
There is no intention to require any monitoring of ethnic contents of the Jersey Workforce by either nationality or race.
B1. I t w ould be unlawful for all employers, no matter how small or large their number of employees, and for all
employees, to discriminate on racial grounds in any aspect of employment, including -
(a ) r e cruitment;
(b ) s e lection;
(c ) tr aining;
(d ) p r omotion;
(e ) tr ansfer;
(f ) p ay and benefits; (g ) h o urs of work;
(h ) c onditions of employment e.g. employers would also be responsible for ensuring that racial harassment did
not take place in the workplace;
(i ) re dundancy;
(j ) d ismissal.
B2. E x c eptions
H o w e v e r, there would be a number of exceptions to the Law -
(a ) f o r a person working in a private household, or applying to work in a private household. But the legislation
should distinguish between domestic work which is focused on members of the household, e.g. Nanny, au-pair, live-in carer (normally a contract of service); and work which is performed in private households by a tradesperson (normally a contract for service) or an employee of a person who carries out his/her business from home which would be treated under normal employment law;
(b ) f o r a person working all or most of the time outside Jersey. This exception should not be interpreted to cover
seasonal labour employed in tourism, retail and agriculture, etc.
e. g . A r e sid e nt who is employed for services in a country abroad such as Saudi Arabia.
(c ) f o r a person who lives outside Jersey but is employed by a company based inside Jersey which trains them to
work overseas;
(d ) f o r a person applying for a job where race is a genuine occupational qualification' for part or all of the job,
such as acting in plays or films, or providing personal welfare services to people of a particular racial group;
(e ) d is crimination will not be unlawful if it is done to comply with any piece of statutory legislation.
B3. Pa rtn erships
It w o u ld be unlawful for a firm of two or more partners to discriminate in the arrangements they make for the - (a ) s e lection of new partners;
(b ) a c cess by partners to benefits, facilities or services; or
(c ) d is missal of partners.
B4. T ra d e Unions, workers and employers' associations
B4.1 It w ould be unlawful for any of the following bodies to discriminate in -
(a ) th e terms for admission to membership;
(b ) m embers' access to benefits, facilities or services;
(c ) v a rying the terms of membership; or
(d ) d e priving a person of membership.
B4.2 T h e bodies concerned would be -
(a ) a n y organisation of workers e.g. Trade Unions, Bank Staff Associations; (b ) a n y organisation of employers, e.g. Institute of Directors; and
( c) a ny organisation whose members carry on a particular profession or trade for the purpose of which the
organisation exists, e.g. Law Society, BMA.
B5. Q u a lifying bodies
It w o u ld be unlawful for any body or authority which can confer an authorisation or qualification to discriminate if,
as a matter of law or practice a person is unable (or would find it difficult) to carry on a particular profession, trade, business or vocation without such an authorisation or qualification.
D is c r im ination would be unlawful -
(a ) in the terms for conferring, renewing or extending the authorisation or qualification; (b ) b y refusing or deliberately omitting to grant an application; or
(c ) b y withdrawing or depriving membership from a person.
B6. V o c ational training bodies
I t w o u ld be unlawful for any vocational training body to discriminate against a person seeking, or undergoing
training which would help fit him for any employment as regards -
(a ) te rms of access to any training courses or other facilities;
(b ) r e fusing or deliberately omitting to afford access to them; or
(c ) te rminating the training.
B7. E m p loyment agencies
B7.1 It w ould be unlawful for an employment agency to discriminate against a person - (a ) in the terms on which it offers to provide its services;
(b ) b y refusing or deliberately omitting to provide them; or
(c ) in the way it provides them.
B7.2 It would not be unlawful for an employment agency to discriminate if the employer assures the Agency that the
Genuine Occupational Qualification Exception (see section B2(d)) applies to that vacancy. The onus should be on the employer to provide the correct statement.
"E m p lo yment agencies" would include -
(a ) c o mmercial agencies;
(b ) E mployment and Social Security Job Centre; and
(c ) s c hools and Education Committee Careers Service; (d ) Fa rmers' Union
Part C - Discrimination in other areas
C1 - E d u cation
T h e L a w would apply to any schools and colleges maintained by the Education Committee, independent (fee-
paying) schools and colleges and special schools. It also includes the governors of a school or college and the Education Committee.
I t w o u ld be unlawful for the Education Committee or the governors of an independent school or college to
discriminate in the way that duties are carried out in relation to -
(a ) te rms of admission to any establishment;
(b ) r e fusing or deliberately omitting to accept an application for admission; (c ) a c cess to benefits, facilities or services for any particular pupil; or
(d ) e x cluding or treating unfavourably any pupil/student.
C2. H o u sing
C2.1 It w ould be unlawful for anyone selling, letting or managing property (including business premises) to discriminate
in any of the following ways -
(a ) in the terms on which persons are offered the premises;
(b ) b y refusing to let persons buy the premises;
(c ) b y treating persons differently from other people who want to buy or rent; (d ) b y refusing to transfer a lease to a particular person;
(e ) b y refusing access to any benefits or facilities at the premises;
(f ) b y evicting individuals or subjecting them to other disadvantages.
C2.2 T h ere would be some exceptions -
(a ) o w ner-occupiers selling or letting their property are excluded if they do not advertise or use an estate agent;
(b ) s m all residential premises are excluded (defined as "not more than 5 persons in addition to the members of
the household, or in the case of premises comprising residential accommodation for one or more households under separate letting agreements in addition to the accommodation occupied by the relevant occupier there is not normally accommodation for more than two such households and only the relevant occupier and members of his household reside in the accommodation occupied by him.");
e. g . A n o c c u pier of a house who takes in up to five lodgers.
e .g . A s in g le house divided into two self-contained flats, one of which is occupied by the owner and
members of his family while the second flat is to let to another household.
(c ) s omeone who takes children, elderly people or anyone else who needs special care or attention into their
home and treats them as if they were members of his or her own family.
C3. G o o ds, facilities and services
T h e L a w would cover any goods, facilities or services offered to the public. For example, it would apply to hotels
and catering, banking, insurance and other financial services, cinemas, theatres, bars, restaurants, pubs and other places of entertainment or refreshment, transport and travel services, and services provided by any public utility or public authority, e.g. States department, States committee, sub-committee, other States agency or parochial authority, and any profession or trade.
It w o u ld be unlawful for any such organisation to discriminate by either refusing a person their services, or giving a
person their services on less favourable terms or conditions than offered to people of other racial groups.
C3.2 T h ere are some exceptions, namely -
(a ) s o meone taking in foster children or elderly people;
( b ) f inancial facilities for a purpose to be carried out outside Jersey, e.g. loans for development outside the
Island;
( c) g oods, facilities and services provided outside Jersey, e.g. in the case of an organisation with corporate
headquarters in Jersey with worldwide interests; and
(d ) p roviding education or training for people not intending to remain in Jersey after it is over, e.g. a language
school.
C4. C lu b s and associations
C4.1 D is crimination by clubs and associations against members or persons seeking to become members may be unlawful
-
(a ) if it is an organisation covered by paragraph B4.2 (any organisation of workers, employers or professional
association);
(b ) if it is an organisation covered by paragraph C3 (goods, facilities and services open to the public or section of
the public, e.g. British Airways Executive Club);
(c ) if it is an organisation with 25 or more members which is not covered by (a) or (b) which has a constitution
regulating admission to membership which is so conducted that members do not constitute a section of the public, e.g. golf club.
C4.2 T h ere is an exception to this, namely -
If th e m ain object of the club or association is to enable the benefits of membership (whatever they may be) to be
enjoyed by persons of a particular racial group defined other than on grounds of colour.
C5. Pr o s cribed organisations
C5.1 T h ere would need to be a general provision to proscribe any organisation whose purpose or practical activity is
likely to promote or incite racial discrimination, and of any individual's participation in such organisations (see Part F).
N o t e : If re quired to list the organisations, this could be done in a Schedule attached to the Law, amended by
Regulations.
C5.2 T h e definition of "organisation" will have to include informal groups not formally constituted or incorporated. C6. E le c ted posts for public office
C6.1 It will be an offence to discriminate on racial grounds in any aspect of the election process including nomination,
electoral procedure, ratification of result, induction or appointment.
C6.2 H o wever, there is at present a statutory exception in so far as candidates for Senator and Deputy must be a British
subject. This provision is under review.
C6.3 Fu rthermore, the parochial officials including Connétable s, Honorary Police and Roads Inspectors at present may
have dual nationality. This provision is under review.
C7. C h a rities
C h a r itie s are not specifically exempt because in Jersey "charitable status" is not clearly defined and there is no
regulatory body such as the Charities Commission. An automatic exception under the Law could provide the potential for abuse. It is preferable that when a complaint is made involving an organisation described as charitable it should be referred to the Race Discrimination Officer, who should refer the matter through the appropriate enforcement route if necessary.
It s h o u ld be noted that under Part E2(d) there is a general exception under special needs. Part D - Other unlawful acts
D1 - A d vertisements
D1.1 A n y advert which indicated an intent to discriminate on racial grounds would be unlawful, e.g. it would be
unlawful for an employer to state in a job advert that only white people should apply. It would also be unlawful to publish or cause to be published whether through the press, media or by any other means any advertisement that indicates or might be reasonably understood as indicating, an intention to discriminate.
D1.2 H o wever, it would not be unlawful for adverts to be placed or published where there is an indication of an act of
discrimination if any of the following exemptions apply -
(a ) g e nuine occupational qualification;
(b ) c e rtain clubs and associations (see section C4);
(c ) s p ecial needs (see section E2(d));
(d ) s p orts and competition (see section E2(b));
(e ) c o mpliance with statutory legislation (see section E2(c)). D2. Pr e s sure or instructions to discriminate
It w o u ld be unlawful to instruct, induce or attempt to induce any person or organisation to discriminate, e.g. it
would be unlawful for an employer to tell the job centre that they should NOT send any "coloured" or "foreign" persons for interview.
Part E - General exceptions
E1. E x c e ptions in Parts B, C and D
N o t e : A n umber of specific exceptions have been made to the provisions contained in Part B (Employment),
Part C (Housing), Part C (Goods, facilities and services) and D1 (Adverts). The following exceptions ar general and will apply in relation to all the discrimination and associated conduct provisions which would otherwise be unlawful.
E2. G en e ral exceptions
( a) N on-residents' training - It shall not be unlawful to discriminate when affording access to education or
training and any ancillary benefits where the discrimination is against a person who is not normally resident in Jersey and it appears that the person in question does not intend to remain in Jersey after his period of education or training.
(b ) S p ort - It shall not be unlawful to discriminate on the basis of nationality, place of birth or length of residence
in any place or area if the discrimination is for the purpose of selecting a person or team to represent a particular place or area
or is in pursuance of specific competition rules relating to eligibility.
(c ) S tatutory authority - It shall not be unlawful to discriminate in order to comply with either any provision of
Jersey Law or in pursuance of arrangements approved by a Committee of the States where the power to make such arrangements is vested in statutory law, including subordinate legislation.
(d ) ( R egard would have to be had by the Crown Officers as to whether any existing statutory legislation would
be in contravention of the Race Relations Law.)
( e ) S pecial needs - If a particular racial group has special needs as regards education, training, welfare or
ancillary benefits, it shall not be unlawful to discriminate in favour of members of that group if it can be clearly demonstrated that their need can only be met by a restriction or preferential allocation.
N o t e : T h e re will be no exemption to permit overt positive discrimination, e.g. it would be unlawful to
discriminate in favour of a person on the grounds that he has been disadvantaged in the past and should therefore be helped to "catch up".
Tim e constraints - There will be a time limit for complaints of 12 months but the law will not be
retrospective in any respect.
Part F - Incitement to racial hatred F1. I n tr o duction
A s J e rs ey does not have the equivalent of Part III of the Public Order Act 1986 which covers all aspects of
incitement to racial hatred there will need to be an article making it a criminal offence to use threatening, insulting, abusive words or behaviour with the intention of stirring up racial hatred as well as when in all the circumstances racial hatred is likely to be stirred up. It should also cover the publication and broadcasting of such material through any media.
F2. A cts intended or likely to stir up racial hatred will include -
(a ) u s e of words or behaviour or display of material, written or otherwise; (b ) p u blishing or distributing written material;
(c ) p u blic performance of play;
(d ) d is tributing, showing or playing a recording;
(e ) b r oadcasting or including programme in cable programme service;
(f ) p ossession of racially inflammatory material with a view to displaying, publishing, distributing, showing or
playing;
(g ) c o mputer websites, etc.
F3. T h e offence of incitement to racial hatred would be a criminal matter to be dealt with by the police.
F4. T h e penalty for incitement to racial hatred shall be a fine or a term of imprisonment not exceeding two years or
both.
F5. Fu r th er consideration should be given to powers of entry, search (with or without a warrant) and forfeiture in cases
involving racially inflammatory material.
F6. A s th e courts have flexibility over powers of sentencing which would take into account matters such as a racially
motivated attack, it is not proposed to create a separate offence of aggravated racial assault, or interfere with the existing basis of the burden of proof.
Part G - Enforcement
G1. In tr o duction
G1.1 T h e proposals for enforcement are ones that are appropriate to Jersey in both resource demands and its
administrative "tone".
E n fo r c e ment structures and procedures are not intended to be overly bureaucratic.
G1.2. T h ere will be no equivalent of the Commission for Racial Equality, which is far too bureaucratic, expensive and
cumbersome for Jersey.
G1.3. T h e enforcement structure will consist of the Race Discrimination Officer, members of the Race Discrimination
Panel sitting as single adjudicators and an Appeal function performed by the Royal Court. In addition, race relations employment issues will be referred to the Jersey Advisory and Conciliation Service (JACS) for conciliation and where such issues are not amenable to conciliation to an employment tribunal (see Appendix A).
G1.4. Wh ere an adjudicator acts as a sole adjudicator he/she must be legally qualified. G.1.5. D ecisions of the sole adjudicator will be binding.
G2. R a c e Discrimination Officer
G2.1. T h ere will be a Race Discrimination Officer selected by an independent assessment process.
G2.2. T h e Race Discrimination Officer will be a person with relevant professional qualifications or experience and will
act as a filter. All non-criminal complaints will be addressed to the officer in the first instance before being processed further. Any potential criminal cases will be referred to the police (see Appendix A).
G2.3. T h e Race Discrimination Officer will be empowered and required to -
(a ) o b tain information relevant to complaints with the caveat that if provision of this information is refused then
the adjudicator may draw an adverse inference;
(b ) r e fer employment and related discrimination to the Jersey Advisory and Conciliation Service (JACS);
(c ) r e fer unresolved complaints (other than employment-related matters) to an Adjudicator via the Chairman of
the Race Discrimination Panel;
(d ) r e ject a complaint on the basis of vexatiousness, triviality or lack of merit.
G2.4. T h e Race Discrimination Officer will be required to -
(a ) r e ceive all complaints under the relevant law;
(b ) n o tify respondents of the complaint;
(c ) a d vise complainants of any relevant time limits for filing a complaint;
(d ) a d vise respondents of any relevant time limits for filing a response;
(e ) r e fer prima facie employment complaints to the Jersey Advisory and Conciliation Service (JACS); (f ) re fer incitement of racial hatred cases to the police;
( g ) c onduct investigations into matters of discrimination other than those involving employment and racial
hatred;
(h ) a d vise and conciliate if possible, to resolve complaints;
(i ) re fer unresolved complaints to the Chairman of the Race Discrimination Panel;
(j ) co mpile and maintain a register of complaints and their final outcome;
(k ) p r oduce an annual report for the Policy and Resources Committee to be laid before the States;
( l) p roduce codes of practice agreed by the Policy and Resources Committee after appropriate consultation.
Such codes of practice will not be part of the law but failure to abide by them may be taken into account during investigations into a complaint to establish discrimination or a discriminating practice;
(m ) w ork with other relevant individuals and organisations to promote good race relations in the community. G3. R a c e Discrimination Panel
G3.1(a) The Panel will consist of a Chairman and 11 other persons appointed for an indeterminate period by the States on
the recommendation of the Legislation Committee. Panel Members will be required to retire on attaining 72 years.
(b T)he Chairman of the Panel of Adjudicators should be legally qualified. (c T)he allocation of cases will be run on the basis of a rota system.
(d T)he process of appointment to the adjudicators' panel should be initiated by public advertisement inviting those
wishing to serve to express their interest. A similar notice should be sent to the Law Society.
(e A) member may resign from office by written notice.
( fI) f a panel member is guilty of any malpractice or, in the opinion of the Legislation Committee, is incapable of the
proper performance of his functions as a panel member or is otherwise unsuitable to continue in office, the Committee shall report the facts to the States and the States, after deliberating thereon in camera, may remove the panel member from office.
(g A)lthough it is envisaged that membership of the panel would be on a voluntary basis, the legislation should provide
for the payment of nominal attendance allowances to panel members and a similar but increased payment to the Chairman in recognition of his/her additional duties.
(h A) vacancy in the number of adjudicators constituting the panel does not affect a determination made on behalf of
the panel.
G3.2 T h e Chairman of the Panel will be required to -
(a ) a ppoint a single member of the Panel (the Adjudicator) to hear each complaint. The Chairman must ensure
that in making these appointments there is a fair distribution of work amongst the members of the panel;
(b ) p r ovide advice to an adjudicator, if requested;
(c ) a d vise the States periodically on the workings of the Law. G3.3. A d judication procedures
(a ) B oth parties will be invited to put their case in writing or otherwise and will be advised of any relevant time
limits.
(b ) A n adjudicator appointed to determine a complaint may do so by holding a hearing. Under Human Rights
Legislation all hearings should be held in public unless there is a qualifying exemption. It is anticipated, however, that the convention right to privacy could be relied upon by the complainant for the hearing by the adjudicator to be held in private. Nevertheless, all judgements will be made public. The publication of judgements will need to be a sensitive mechanism because, in a small community, the identification of complainants could be counter-productive. N.B. An adjudicator may determine a complaint solely by considering written submissions unless an interested person objects. An interested person is defined as a complainant, respondent or witness.
(c ) T he burden of proof will lie with the complainant and decisions will be based upon the balance of probability having taken a practical view of matters of what was reasonable in the circumstances as opposed to taking a
purely legalistic view.
( d ) Where the adjudicator upholds a complaint, he/she may issue a non-discrimination notice to remedy
situations that are in breach of the law. The decision to issue a non-discrimination notice will be taken only after careful consideration of any representations made by respondents.
(e ) B oth parties will be informed of the result and the grounds for the decision shall be given.
(f ) T he enforcement system is designed to be non-legalistic, less expensive and less time-consuming than the
court process. Complainants and respondents would not be required to appoint professional representatives.
(g ) N o legal costs will be awarded.
(h ) R ecords of all proceedings will be kept by the adjudicator and copies will be lodged at the Judicial Greffe. G3.4 T h e Adjudicator will have the power to -
(a ) r e fer the claim back for conciliation (once only);
(b ) r e quire witnesses, complainants and respondents to attend;
(c ) q u estion witnesses, complainants and respondents;
( d ) r equire the production of documents or further information and an adverse inference may be drawn if
information is withheld;
(e ) r e ceive oral and written evidence; (f ) o btain expert or legal advice;
(g ) a ward compensation for hurt or distress up to a cap of £2000 to complainants who have been discriminated
against;
(h ) is sue a non-discrimination notice where discrimination is identified;
(i ) re fer if appropriate a failure to comply with a non-discrimination notice to the Magistrates Court where the
failure will be dealt with as a criminal offence with a Scale 3 maximum fine.
N B : A ny breach of statutory duty under the Law could form the basis for a civil action for damages in the Royal
Court.
G4. T h e Race Discrimination Officer will be the person to whom all non-criminal complainants will first go and where
the facts of any complaint will be recorded and verified, after which one of the following courses of action will occur -
(a ) T he complaint relates to racial discrimination in employment and will be referred to the Jersey Advisory and
Conciliation Service (JACS) for advice and conciliation. If this is not sufficient then the complaint will be referred by JACS to the process officer for the Employment Tribunal.
(b ) T he complaint relates to a matter of racial discrimination (other than employment) which can be satisfactorily
resolved by the Race Discrimination Officer with words of advice or explanation - in writing where appropriate.
( c ) T he complaint relates to a matter of racial discrimination (other than employment) which cannot be
satisfactorily resolved by the race discrimination officer and therefore must be considered by an adjudicator, who will have the power to issue non-discrimination notices. A failure by any party to comply with a non- discrimination notice will be a criminal offence dealt with by the Magistrates Court with a maximum penalty of £2000 (Scale 3 fine).
(d ) T he adjudicator may award an amount of compensation for hurt and distress not exceeding £10,000 - failure
to abide by which will be a tort enforceable as a civil debt at the Petty Debts Court.
(e ) C ompensation for losses will be dealt with by the Petty Debts or Royal Court depending upon the level of
losses.
(f ) A ny claims for damages due to a breach of statutory duty will be heard in the Royal Court as a civil tort. G5. In c ite ment and racially motivated crime
G5.1 Wh ere a complaint is one of a criminal nature or an incitement to racial hatred the case will be referred to the
police, who would thereafter take over all aspects of the investigation and preparation for the prosecution in the usual way.
G6. R ig h t of Appeal
G6.1 T h ere will be a right of appeal against any action or inaction of - (a ) T he Race Discrimination Officer to an Adjudicator
( b ) T he Race Relations Adjudicator on a point of Law to the Inferior Number of the Royal Court (This is
designed to operate swiftly along the lines of a streamlined Judicial Review using Affidavits rather than personal appearances wherever possible.)
G6.2 T h ere will, of course, be the normal right of appeal in criminal cases to the Royal Court against decisions of a lower
court.
G7. R e s ources
G7.1 It is intended that the setting up of a race relations office and panel of adjudicators will provide an effective and
user-friendly process for dealing with complaints of racial discrimination. It will provide a quick and less expensive route than the Royal Court.
G7.2 In itia lly accommodation will consist of an office space and other shared resources with the Employment Tribunal
arrangements provided by the Employment and Social Security Committee. The sharing of resources between the race relations and employment tribunal functions is in keeping with the States' commitment to operating in a way that reflects both joined-up thinking and joined-up government. In addition it will lead to savings in costs and other resources.
T h e r e w ill be a requirement for a part-time contract post of race discrimination officer. The part-time secretarial
and process officer posts will be a shared resource with Employment and Social Security.
In to ta l it is estimated that costs will be in the region of £150,000 for the first year of operation and £116,000 in
subsequent years, which will include staffing and the operation and accommodation of the Race Discrimination Panel, subject to the approval of the States (see Appendix B).
T o en s u re independence and human rights compliance it is proposed that the costs are defrayed out of the general
revenue of the States.
5th March 2002.
APPENDIX A
RACE DISCRIMINATION LAW: COMPLAINT PROCEDURE CRIME POLICE COURT
Racial
ace Employment/ JEAmCpS/loyment DO isff cic re imr in a tio n R e c ru i tm e n t Tribunal
Discrimination
Issue
Race
ODthiscerrim Raincaiatiol n Discrimination
Tribunal
R.D.O. to advise and conciliate where appropriate
APPENDIX B
RACE DISCRIMINATION LAW: BUDGET Details £ Start-up costs
Rent and other costs of £21,600 to be shared with Employment 10,800 and Social Security
Conversion and refurbishment costs of £12,480 to be shared 6,240 with Employment and Social Security
Furniture, carpets, etc. 12,960 Information Technology, telephones, etc. 4,000 Total 34,000
On-going costs
Administration costs 10,000 Publications 15,000 P/T Race Discrimination Officer 20,000 P/T Process Officer 15,000 P/T Secretary/receptionist 11,000 Legal advice, insurance, attendance allowances, etc. 45,000 Total 116,000
Budget required during first year of operation: £150,000. Budget required for subsequent years: £ 1 1 6 ,0 0 0.