BBC v Souster [2001] IRLR 150
British Airways v Boyce [2001] IRLR 157
R v White, Times Law Report 13 March 2001

Dipping their toes into the topical and contentious debate as to what national identity means, the Scottish Court of Session in BBC v Souster conclude that the English do have separate "national origins" to the Scots. As a consequence, the Race Relations Act 1976 does apply to discrimination between the Scots and English.

Mr Souster, an English television presenter, claimed that he had lost his job as a presenter for "Rugby Special" for BBC Scotland because he was English and BBC Scotland wanted a Scottish person in post. He lodged a Tribunal claim for race discrimination. As a preliminary point the Tribunal had to decide whether the Race Relations Act covered discrimination between the Scots and English. The Tribunal, and also the Employment Appeal Tribunal, held that it did, following the previous Employment Appeal Tribunal authority of Northern Joint Police Board v Power 1997 IRLR 610. The BBC appealed, and the matter was heard by the Scottish Court of Session (the equivalent of the English Court of Appeal).

The issue before the Court of Session was the meaning of the words "on racial grounds" in section 1 (1) (a) of the Act ("...a person discriminates against anothe...if on racial grounds he treats that other less favourably than he treats or would treat other persons..."). "On racial grounds" is defined in section 3(1) of the Act as meaning colour, race, nationality or ethnic or national origins.

Mr Souster argued that being English was a matter of national origins. The BBC's response was that nationality and national origins should be defined by reference to citizenship and nationality in the legal sense. Given that both the Scots and English share a British passport, according to the BBC they belonged to the same nation and therefore there could be no unlawful discrimination between sub-groups of the one nation.

In these days of devolution and complex analyses of racial identity, such simplistic arguments were unlikely to succeed, and indeed they did not succeed. The Court of Session decided that national origins should be given a broader and more flexible interpretation than just a reference to a passport: "What has to be ascertained are identifiable elements, both historically and geographically, which at least at some point in time reveals the existence of a nation." Given that England and Scotland were once separate nations, the Court held that the test was satisfied.

On the related question of whether the English or Scots are part of a "racial group", the
Court quoted with approval the authoritative House of Lords decision in Mandla v Dowell Lee 1983 IRLR 209 : "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 memberÉIn my opinion, it is possible for a person to fall into a particular racial 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." Referring to this passage, the Court of Session observe that it may be the perception of the discriminator which defines the racial group. If the discriminator's treatment arises from their perception of the victim's national or ethnic origins, then the victim's actual national or ethnic origins, let alone their passport nationality, are irrelevant.

This broad and flexible definition of racial grounds properly takes into account the complex reality of national identity, where a person may change their nationality by marriage or geographical migration or indeed simply by association. Likewise it takes into account the complexity of racial prejudice, where a person who discriminates may do so in complete ignorance of the victim's actual nationality or national background. A flexible definition of race is essential to reflect these circumstances.

Although the Souster case was just concerned with discrimination between the Scots and English, the decision potentially affect the Irish and Welsh, and indeed any person
needing to bring themselves under the protection of the Act.

Mr Souster's case was heard at the same time as another English and Scottish discrimination dispute. In British Airways v Boyce, Mr Boyce had previously been unsuccessful in pursuing a Tribunal application for race discrimination on the grounds of his English "ethnic origins". Two years later, he lodged a further Tribunal claim arguing discrimination in relation to the same facts but on the grounds of his English "national origins". The Court of Appeal dismissed his application. Although he could have succeeded in his claim that being English was a question of national origins, because he had previously brought a similar claim he could not now seek to bring the same issue before the Tribunal. Referring to the principle set out in the Court of Appeal decision of Divine-Bortey v London Borough of Brent 1998 IRLR 525, the Court of Session held that all legal arguments arising out of the same facts should be heard before the one Tribunal. It is not possible to seek to argue different legal points in a later Tribunal, if those arguments should or could have been argued before the first Tribunal.

This case is a useful reminder of the need to argue all the relevant points before the Tribunal. If a party fails to do so, they will not have a second chance. In the context of pursuing race discrimination cases, it is therefore particularly important to consider with some care the nature of the racial grounds on which the Applicant is relying.

A recent criminal case from the Court of Appeal - R v White - concerned a defendant, Mr White. Mr White was black, and his offence was to call a bus conductress a "stupid African bitch". The questions which the Court had to answer was whether "African" was a term which described a "racial group" or a "race", and whether a person can discriminate on racial grounds if they are of the same racial group as the victim. The answer given by the Criminal Division of the Court of Appeal was yes to both. The Court held that this was "racially aggravated" conduct. "Racial group" and "race" had to be broadly defined and given a broad, non-technical meaning. Therefore the word "African" could describe a racial group. Further, the Court held there is no reason why people from the same racial group cannot discriminate against people of the same group. This is a criminal decision, but the same conclusions would undoubtedly be reached by Tribunals in the employment context.