What lessons we should learn from other jurisdiction for a proper racial discrimination legislation

1. What lessons we should learn from other jurisdiction for a proper racial discrimination legislation Patrick Yu Executive Director Northern Ireland Council for Ethnic Minorities

2. Why legislation? • Discrimination • Inequality • Exclusion

3. Issue • What are the experiences of minority ethnic people in Hong Kong in terms of discrimination, inequality and exclusion in the areas of employment (domestic and migrant workers), self-employment, education, training, housing, health care, social benefits, provision of goods, facilities and services?

4. Nature of equality legislation • Minimum standard and norms of the society on what are the acceptable behaviour; • Concept of equality; • Human rights dimension; • Political consensus or compromise;

5. Issues • Means (grounds, scope of protection, concept of discrimination, exceptions and exemptions • Ends (purpose of the law: considers: 1. Whether “equality and diversity” are the core values of the Hong Kong society?; 2. Whether the government, as well as the general public, have a legal duty to promote equality of opportunity?

6. Minimal standard • Law may deter certain human behaviour • Law cannot eradicate or outlaw the prejudice’s mind; • Making law is always seen to solve all the problems; • Equality law has less impact if there is no parallel process on the development of policy and practice, public awareness (formal and informal education) and media.

7. Concept of Equality • Equal treatment • Equality of outcome • Equality of opportunity

8. Equal Treatment(formal equality) • Justice requires consistency, therefore, likes should be treated alike; • It does not take into account existing distribution of wealth and powers; • Assumes two individuals are relevant alike; • No differences treating between two such people equally badly and equally well; • Need to find a comparator; • Individual rights, not group rights

9. Equality of outcomes / results • Focus on existing inequality of distribution of wealth and power; • Improve the relative position of particular groups, whether to redress past inequality and disadvantage position; • Emphasize outcomes and results in terms of equality impact; • Concept of indirect discrimination and group rights model; • May require unequal treatment, such as special measures (including reverse discrimination) if necessary to achieve an equal impact.

10. Equality of Opportunity • Procedural equality; • Focus on facilitating personal self-fulfilment by equalising opportunities; • Emphasize EO is consistent with inequality of treatment and inequality of outcomes/results; • Unequal treatment might be necessary to equalize the opportunities of all individuals, but once opportunities are equal, different choices and capacities might lead to inequality of results.

11. Two notions of equality • Negative equality * Put everyone equal before the law. * As the result the principle of non-discrimination • Positive equality * Equal protection, including special measures • Examples of the Race Equality Directive

12. Equality & Difference • Difference implies inequality; • Inequality implies inferiority; • In a pluralistic society and a global economy difference and diversity should be regard as positive assets of the society; • Equality, far from suppressing difference, should accommodate and even embrace it.

13. Human Rights and Equality • UN mechanism: 1. ICCPR Article 26; 2. ICESCR Article 2; 2. ICERD Article 1 and 5; 3. CEDAW Article 1; 4. CRC Article 2(1) & (2) ; 5. Drafting process on a new Disability Convention

14. Relevance to Hong Kong • Constitution of PRC (…equal before the law…..respect to and the protection of human rights (Article 33) • Basic Law of the Hong Kong Special Administrative Region of the PRC (recognised the above UN obligations) • Bill of Rights Ordinance (copy ICCPR) • Other related equality legislations (gender, family status and disability)

15. Issues • What are the relationships between the new race legislation and the Constitution of PRC, the Basic Law and the Bill of Rights Ordinance? • What are the relationships between the new race legislation and the existing equality legislations?

16. Issues • Can we identify different forms of protection from the above relationships in order to expand the scope of protection due to the limitation of the proposal on race? • How we accommodate and tackle multiple identities and multiple discrimination?

17. Wider conception of equality legislation • Professor Michel Mine argued that discrimination law can be compared to a tree: • The roots: representing the values embodied in and defended by the law (human dignity, and everything that it implies); • The trunk: representing applicable rules and issues common to all types of discrimination (the concepts of discrimination and assessment systems in particular)

18. Wider conception of equality legislation • The branches: each one representing a particular area of discrimination (sexual, racial, disability, etc.) each with specific legal, historical and sociological features, with the possibility of transferring legal solutions between branches

19. Wider conception of equality legislation • How to use equality principle to realise economic, social and cultural rights (Article 1 & 5 of ICERD)? • “Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic principle in the protection of human rights…A distinction is contrary to the Convention if is has either the purpose or the effect of impairing particular rights and freedom…” (ICERD General Recommendation 14)

20. Wider conception of equality legislation • In order to have equal protection before the law, it implies the state to have a positive duty to promote equality; • In UK, the Race Relations (Amendment) Act 2000 provides that public authorities has a legal duty to the promotion of the equality of opportunity and also a duty to promote good relations between different racial groups; • The equivalent in Northern Ireland it is under Section 75 of the Northern Ireland Act 1998, but it covers nine grounds, including race.

21. Orientation of legislation • Victims perspective; • Administrative perspective; • Or both?

22. Who should be protected by the law? • Principle: victim identification “Having considered reports from States Parties concerning information about the ways in which individuals are identified as being members of a particular racial or ethnic groups or groups, is of the opinion that such identification shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.” (Art.1 para. 1 & 4 of the General Recommendation 8: identification with a particular racial or ethnic group)

23. Who should be protected by the law? • Individual or group (natural person or legal personality, or both) “1. The Committee stresses that, according to the definition given in Article 1, para. 1 of the ICERD, the Convention relates to all persons who belong to different races, national or ethnic groups or to indigenous people. If the Committee is to secure the proper consideration of the periodic reports of States Parties, it is essential that States Parties provide us as far as possible the Committee with information on the presence within the territory of such groups.

24. Who should be protected by the law? 2. It appears from the periodic reports…….that a number of State Parties recognise the presence on their territory of some national or ethnic groups or indigenous peoples while disregarding others. Certain criteria should be uniformly applied to all groups, in particular the number of persons concerned, and their being of a race, colour, descent or national or ethnic origin different from the majority or from other groups within the population.” (General Recommendation 24)

25. Issue • Does the proposal inclusive? • Do migrant workers and domestic workers are protected? • EU Race Equality Directive (25 countries) outlaw any form of discrimination in the field of employment, training, education, housing, social welfare and benefits (including health), social advantage, the provision of goods, facilities and services.

26. Grounds of protection • International comparison on grounds of protection: ICCPR Art. 26: race, colour, language, religion, national ICERD Art. 1: race, colour, descent, or national or ethnic origin ECHR Art. 14: race, colour, language, religion, national, association with a national minority

27. Grounds of protection ECRI Recommendation 7: race, colour, language, nationality or national or ethnic origin EU Race Equality Directive: racial or ethnic origin UK legislation: racial ground means colour, race, nationality, national or ethnic origin

28. Grounds of protection Australia legislation: race, colour, descent, national or ethnic origin Canada legislation: race, ancestry, place of origin, colour, ethnic origin, citizenship South Africa: race, ethnic origin, colour, culture, language

29. Grounds of protection • Case law: Mandle v Lee [1983] HL, per Lord Fraser • Definition of ethnicity: • Either a common geographical origin or descent from a small number of common ancestors; • A common language, which did not necessarily have to be peculiar to the group; • A common literature peculiar to the group

30. Mandle v Lee 4. A common religion different from that of neighbouring groups or from the general community surrounding it and 5. The characteristics of being a minority or being an oppressed or a dominant group within a larger community

31. Case law development since Mandle v Lee 1989: CRE v Dutton – Irish Travellers 1997: Irish 1998: British in Northern Ireland 1999: English in Scotland • Since Mandle v Lee, Sikh and Jews only, not Isalm

32. A specific protected group on the law? Northern Ireland: Irish Traveller is a racial group within the meaning of the legislation in which it defines as a group of people who are living in the nomadic way of life, either identify by themselves or by others, on the island of Ireland. Conclusion: the case for Mainland Chinese

33. Scope of protection EU Race Equality Directive: “….this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (a) Conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

34. Scope of protection (b) Access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) Employment and working conditions, including dismissals and pay; (d) Membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided by such organisation;

35. Scope of protection (e) Social protection, including social security and healthcare; (f) Social advantages; (g) education; (h) Access to and supply of goods and services which are available to the public, including housing.

36. Issues • Equality access to employment and public services due to language, cultural and other barriers; • Language and cultural factors are deemed to be in-direct discrimination.

37. Concept of discrimination • Direct discrimination (outcome oriented definition?); • Indirect discrimination (statistical comparator?); • Harassment; • Victimisation; and • In-action (under statutory duty)

38. Exception & Exemption Principles of exception and exemption: • Specific; • Legitimate aims and objectives are clear; • Proportionality; • Review and its process

39. Exception: the law in EU Article 5: Positive Action “With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.” (see also Preamble: para. 17)

40. Issues • New issues and social conditions are change overtime, how we ensure that there is a mechanism to review whether exemption and exception are further justified. • Who should participate in the review process? (representation from minority ethnic groups? NGOs? social partners? etc.)

41. Defence of rights (Article 7) • Judicial and / or administrative procedures for the enforcement of the national legislation (including conciliation procedures); • NGOs, social partners, etc. ,who has legitimate interest in the area, can represent the victim(s) at all procedures if consent is given.

42. Issues • Shall we consider the Labour Tribunal of Hong Kong to have competence on equality legislation in the area of employment and related issues? • EU experience: 1. Director of Equality Investigation Office (Ireland); 2. Dutch Equal Treatment Commission

43. Burden of Proof (Article 8) • Burden of proof shift to the respondent if the victim establish a prima facie case; • It will be the respondent to disapprove the alleged discrimination.

44. Social Dialogue (Article 11) • Member States shall take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering equal treatment, including through the monitoring of workplace practice, collective agreements, codes of conduct, research or exchange of experiences and good practices.

45. Dialogue with NGOs (Article 12) • Member States shall encourage dialogue with appropriate NGOs which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of racial and ethnic origin with a view to promoting the principle of equal treatment.

46. Enforcement body • Paris Principle • CERD General Recommendation 17: • Promote respect for the enjoyment of human rights without any discrimination, as expressly set out in Article 5 of the ICERD; • Review government policy towards protection against racial discrimination; • Educate the public about the obligation of State Parties under the Convention; • Assist the government in the preparation of reports submitted to the CERD (Commission on Human Rights resolution 1992/54 of March 1992)

47. Effective remedy • Types of remedies: Compensation in terms of 1. loss of earnings 2. injury of feeling 3. injunctions and other relief

48. Compliance: Article 14 “Member States shall take the necessary measures to ensure that: • Any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished; • Any provisions contrary to the principle of equal treatment which are……………..are or may be declared, null and void or are amended.”

49. Other important process • Development of policy and practice within public and private sector to the promotion of racial equality (NICEM’s Race Equality Audit); • Education (formal and informal) and Training (Anti-racism, cultural awareness, diversity training, etc.) • Media: positive to use media to portrait the positive image of minority ethnic people and their contribution to the society

50. Conclusion What made man to be a man? It is humanity and dignity. Without humanity and dignity it is not a man and worse to be a human being. We have only one race in this world. It is the human race. But for this humanity, dignity and one human race, men are struggle to fight for racism, xenophobia, anti-semitism and anti-islamphobia.