The Clive Potter prisons case is nearing an end and the skeleton argument I wrote for Clive is below. If any nationalist can use the arguments in a case for themselves, then feel free to take what you want.
Skeleton Argument for the Claimant - Mr. Clive Potter.
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This is a case by Mr.Potter, a member of the White British racial group, who was refused employment and suffered Direct Racial Discrimination at the hands of Her Majesty’s Prison Service ( HMPS) under the terms of the HMPS Policy - PSI ( Prison Service Instruction ) 42/2001. The policy became part of a Prison Service Order in 2003.
This a claim for Direct Racial Discrimination against the HMPS as defined under Section 1 of the Race Relations Act 1976 ( as amended by the 2003 RRA amendment regulations).
Section 1(1)(a) RRA 1976:
A person discriminates against another if, in any circumstances, relevant for the purposes of any provision of this Act:
On racial grounds he treats that other less favourably than he treats or would treat other persons.
The claim relates to breaches of Para 4 of the Race Relations Act 1976 ;
4 . . . Applicants and employees
(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another—
(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b) in the terms on which he offers him that employment; or
(c) by refusing or deliberately omitting to offer him that employment.
Facts of the Case
Mr.Potter applied to join the HMPS on the 14 September 2005 as Operational Support Grade at HMP Gartree. On this original application Mr. Potter declared his membership of the BNP.
He was accepted for an interview by letter dated 22 nd September 2005 on the 29 September 2005.
Mr. Potter then responded by letter on the 26 th September 2005 saying he would be willing to attend the interview on the 29 th September 2005. He also stated in this letter that he had studied the documentation sent to him by the HMPS and saw that the HMPS had not clarified his position as an applicant as regards his membership of the BNP ( British National Party ).
On the 27 th September Mr .Potter received a letter saying his application for interview and employment within the HMPS had been terminated. This was sent to him by Liz Horton. The letter from Liz Horton sent on the 27 September ( as stated at Para 8 and 9 of her witness statement ) makes specific reference to his membership of the BNP, and the HMPS PSI 42/2001, as the reason for his being refused interview and employment in the HMPS.
The HMPS defines the British National Party, the National Front and Combat 18 as ‘racist’ groups because they have an ‘whites only ‘ membership policy and because they exclude members of others races from membership of those organisations. Therefore they come under the definition of a ‘racist group ‘ as under the definition of racism used by the HMPS and adopted after the McPherson Inquiry. This definition of racism is confirmed by David Woolger in his evidence at paragraph 11 and paragraph 13.
Liz Horton in her witness statement states that Mr. Potters application should have been rejected immediately at the Pre-Sift Level of the application process but was not due to simple oversight at paragraph 6 of her evidence.
Sharon Granton in her witness statement also states that Mr. Potters application should have been rejected at both the Pre-sift Level by Liz Horton at paragraph 6 of her witness statement.
Sharon Granton in her evidence states at paragraph 10 states that as Mr. Potter was a member of one of the white organisations listed under the policy that she did not need to contact Headquarters to see whether he should have been rejected for interview. If Mr. Potter had been a member of a white or non-white organisation then Sharon Granton states she would have referred the application to Headquarters. This is direct evidence of a directly racist and discriminatory differential of treatment between white groups and white applicants, who are listed under the policy and who may be refused interview and employment at the pre-sift, sift level and before the enhanced security check, and non-white applicants who may only be refused permission to go for interview at the pre-sift level, the sift level and the enhanced security check level only after Headquarters had been contacted and the refusal for interview approved by Headquarters.
This racist procedure as relating to solely white organisations, white applicants and members of white organisations who are seeking employment within the HMPS is further confirmed by Alison Gilbert in her evidence at Para 4, where she states that only white applicants who are members of white only groups may be rejected at the pre-sift level and the sift level and before the enhances security check. Members of Sikh organisations that should be listed under the policy and whose members should be barred from going to interview or having employment may only be denied interview and employment after the Headquarters are contacted and permission granted.
This is explicitly stated at paragraph 5 of the evidence of Alison Gilbert and is evidence of Direct Racial Discrimination against the white racial group, organisations that represent the white racial group, and applicants for employment in the HMPS who are members of white racial groups.
David Woolger in his evidence at paragraph 15 also states that members of ethnic minority communities, racist groups with non-white members and non-white applicants for employment who are members of non-white racist groups cannot be rejected for interview or employment at the pre-sift level, the sift level or the enhanced security check level without express permission from the Resourcing Policy Unit at Headquarters.
Mr. Potter then sent in two comparator applications to the HMPS.
The comparator of Harpreet Kaur was sent on the 29 th September 2006 for the position of Admin Officer at HMP Highpoint.
The comparator of Maqsood Ahkmed was sent on the 17 th October 2006 for the position of Operational Support Officer at HMP Dartmoor.
The application for the comparator of Harpreet Kaur was accepted by the HMPS for interview on 5 th October 2006.
The application for Maqsood Akhmed was accepted by the HMPS for interview on the 20 th October 2006.
Caroline Rostron in her evidence at paragraph 11 of her evidence seeks to assert that even though the application for Mr.Ahmed was accepted for interview and passed both the pre-sift checks without his application being referred to the Headquarters and Resource Policy Unit, nor his application being passed to Headquarters at the Sift stage when he was given an interview that his application would have been rejected at the enhanced security level check because she had not ticked ’ box 10 ’ of the checklist. Unfortunately this pre-appointment checklist document proving her assertion that ;
1) She had not ticked the ’ box 10’ has not been provided to us
2) The fact that an e mail from her to Tyrone Beharry had been forwarded that specifically asked for ’ checks ‘ to be made on Mr.Ahmed directly contradicts her evidence.
Regardless of whether Mr. Ahmeds application would have passed the enhanced security check, the fact remains that his application passed the pre-sift level check, the sift level check and was accepted for interview without his membership of the Nation of Islam being passed to Headquarters and the RPU for a decision on the eligibility of his application. This is further evidence of favourable treatment on the grounds of race for the non-white ethnic communities, non-white racist organisations and members of those non-white racist organisations by the HMPS.
Her evidence that she lost a post it note ( paragraph 4) reminding her to contact Headquarters about his application, that she also ‘forgot’ ( as at paragraph 7 ) to ring Headquarters after being reminded by Susan Kibler ( who we have no witness statement from to prove the truth of this statement ) to do so, and that because she had not ticked ’box 10’ Mr.Ahmed would have been picked up as coming under the policy at the enhanced security check level cannot also be proved as no documentation exists to prove she did ‘tick box 10’. Therefore her evidence is totally unreliable.
Regardless of her contentions Mr. Ahmed was able to pass the pre-sift level checks which were the pre-appointment checklists and to pass the sift level ( as stated at paragraph 8 of her evidence ) is proof of a direct differential in treatment between white applicants who come under the policy and black applicants who come under the policy.
The HMPS were made aware of the Nation of Islam by a letter from the Chairman of the British National Party, Nick Griffin, to Gareth Hedley in the Personnel Management Group, as regarding its being included as a proscribed group under the policy on the 9 th October 2001. The evidence of David Woolger at paragraph 19 also states that shortly after the policy was enacted the police at Scotland Yard contacted the HMPS and advised them that members of the Nation of Islam were ‘dangerous’, presumably to staff and prisoners in the HMPS, but the HMPS did not proscribe the Nation of Islam or list them under the policy since 2001 or its inception in 2003. This failure to list the Nation of Islam contradicts the HMPS assertion that the policy was regularly updated and not biased against whites, white groups and white applicants to the HMPS who applied for employment as stated at paragraph 25 of the evidence of David Woolger.
The failure to list the Nation of Islam as proscribed under the policy in 2001 after being contactd by Nick Griffin of the BNP and after consultation with Scotland Yard in 2001 contradicts the assertion by David Woolger at paragraphs 22, 23,25 and 26 of his evidence that black racist groups would be proscribed under the policy if the police or others regarded them as racist and dangerous.
The comparator of Harpreet Kaur also proves a differential of treatment. In the evidence of Alison Gilbert she states at paragraph 4 that if the applicant had been a member of one of the listed white only groups then she would have rejected her application immediately. As the applicant was a female Sikh then she was allowed to go for interview.
At paragraph 5 of the evidence of Alison Gilbert she states that applications from non-white applicants can only be rejected after ringing the Headquarters and the RPU.
At Paragraph 10 she states that the fake comparator Sikh applicant, Ms. Kaur, would have had a chance ’ discuss this declaration’ with her prior to her application being refused and this is further proof of a differential in treatment as white applicants from white only groups are not given the same opportunity to ’discuss ’ their declarations with the HMPS before they are refused interview and employment.
The comparator of Ms.Kaur was allowed to go to interview at the sift level as stated at paragraph 3 of the evidence of Alison Gilbert.
The evidence of Paul Davis at paragraph 6 also states that Mr. Potters application was sent to Headquarters and he refused employment by him on the 28 th September 2003. This is a completely irrelevant and the evidence of Mr.Davis has no bearing at all on any issues related to this case. The present case concerns an application for employment by Mr. Potter put in to the HMPS on the 14 th September 2005 not in 2003.
Mr. Davis’s evidence has no relation in any way to the present case and is therefore totally irrelevant as per the present issues before the Employment Tribunal. There are no documents provided by Mr. Davis as per this case and therefore his evidence is irrelevant.
Race Relations Act Section 4.
Mr.Potter has been Directly Racially Discriminated against under the following section of the Race Relations Act 1976 section 4 ;
1) RRA section 4 (a) as he is a member of the White British racial group and a member of the BNP ( British National Party) which represents members of the White British racial group. The Policy PSI ( Prison Service Instruction ) 42/2001 was researched, designed, conceived and applied in a way that was designed to directly racially discriminate only against the White British racial group, organisations representing the White British racial group and against White British members of those groups that represent the White British racial group. This is in direct beach of the Serco dicta as stated at paragraphs 49 and 54 which requires that the ‘policy‘ in order for it to be lawful has to be researched, evaluated, formulated and applied in a way that does not actively and directly racially discriminate against just one racial group and organisations representing that racial group. All racial groups must have the policy applied against them equally and all similar racial groups to the BNP be investigated, proposed for listing under the policy and then listed under the policy. This was not done. Only white racial groups were researched to be included under the policy, only organisations representing the white racial groups were listed under the policy and the policy was imposed against only the White racial group and organisations representing the White racial group with the intent to ’reassure’ members of non-white racial groups that the HMPS was dealing with racism which is unlawful under Showboat Entertainment Centre LTD V Owens (1984) IRLR 7, EAT. It is unlawful to seek to prevent racism within the HMPS by enacting a racist policy within the HMPS.
2) RRA section 4 (b) as he is a member of the White British racial group and a member of the BNP ( British National Party) which represents members of the White British racial group. The Policy PSI ( Prison Service Instruction ) 42/2001 was designed, conceived and applied in a way that was designed to directly racially discriminate only against the White British racial group, organisations representing the White British racial group and against White British members of those groups that represent the White British racial group. That the policy ensured that the terms on which the HMPS offered employment to members of the White British racial group who were members of organisations representing the White British racial group were such that they discriminated solely against the White British racial group and members of organisations that represent the white racial group such as the BNP. Those from other racial groups in similar organisations representing their specific racial interests were / are not discriminated against in the same way as regards the policy as members of the White British racial group were / are and members of specific racial organisations representing the interests of the White British racial group were / are. This is in direct beach of the Serco dicta as stated at paragraphs 49 and 54 which requires that the ‘policy‘ be researched, evaluated, formulated and applied in a way that does not actively and directly racially discriminate against just one racial group and organisations representing that racial group. All racial groups must have the policy applied against them equally and all similar racial groups to the BNP be investigated and listed under the policy. The fact is that the terms of employment within the HMPS as defined by the Policy were such that members of the White British racial group, and members of the BNP, were directly racially discriminated against by the HMPS as the policy was designed to be applied, and was only being applied, in a way that directly racially discriminated against members of the White British racial group and members of the British National Party. That the terms of the policy were such that, both in formulation and application, that direct racial discrimination was both intentional and unavoidable.
3) RRA section ( c ) as he is a member of the White British racial group and a member of the BNP ( British National Party) which represents members of the White British racial group. The Policy PSI ( Prison Service Instruction ) 42/2001 was designed, conceived and applied in a way that was designed to directly racially discriminate only against the White British racial group, organisations representing the White British racial group and against White British members of those groups that represent the White British racial group who applied for employment with the HMPS. That Mr.Potter was directly racially discriminated against as a member of the White British racial group, as a member of the British National Party and as an applicant to the HMPS for employment at all levels of the internal HMPS application evaluation process. This being ;
A) The Pre-Sift Level for applicants from the White Racial group, the BNP, his membership of the BNP and his application for employment within the HMPS
B) The Sift Level for applicants from the White racial group, the BNP, his membership of the BNP and his application for employment within the HMPS
C) The Enhanced Security Check Level for applicants from the White Racial group, the BNP, his membership of the BNP and his actual application for employment within the HMPS
This is in direct beach of the Serco dicta as stated at paragraphs 49 and 54 which requires that the ‘policy‘ be researched, evaluated, formulated and applied by the HMPS in a way that does not actively and directly racially discriminate against just one racial group and organisations representing that racial group. All racial groups must have the policy applied against them equally and all similar racial groups to the BNP be investigated and listed under the policy and all racial groups suffer the same level of discrimination for their membership of a racial group listed under the policy. This was not done.
The proportion of white people who are being designated under the policy as members of ’racist organisations’ as designated by the HMPS under the Policy is considerably more than the proportion of members of ethnics groups that are being designated as members of similar racist organisations. This is because the failure to designate any non-white groups as ‘racist’ under the policy means non-white applicants and members of non-white groups are far more likely to be offered interviews ad employment within the HMPS solely on the grounds of their race. This is because white people are put at a particular directly racially discriminatory disadvantage by the policy. White people, and people like Mr.Potter, are disadvantaged because the list of proscribed groups is a list of white only groups, therefore making it more statistically likely that members of those groups will be spotted, discovered and refused employment, but also because ;
: None of the HMPS staff were trained, instructed or provided with any form of information or updated assessments from within the HMPS that assisted them in spotting, classifying or designating non-white organisations as ‘racist organisations’ that had a non-white membership or similar ‘racist philosophies‘ to that of the BNP. This means HMPS staff are far less likely to reject applicants who are members of those non-white racist organisations for employment within the HMPS at the Pre-Sift Level and the Sift Level than the proscribed list of organisations whose membership was/is white. Fear of HMPS staff being seen to be ‘racist’ against ethnic minority applicants in relation to them being accepted for interviews and employment would also mean that non-white applicants stood far more chance of getting through the pre-sift, sift level and enhanced security check stage than whites in similar organisations. The Human Resources Unit that undertakes the Enhanced Security Check of ethnic minority applicants also does not keep a list of non-white organisations that should be classified as ’racist’ organisations alongside the BNP under the policy, thereby ensuring a far higher statistical probability that members of non-white groups with a similar racist philosophy to the BNP get offered interview and employment. The HMPS in its mania to fight ’racism’ and Institutional Racism had created an Institutionally Racist system as regards its negative treatment of white applicants and its positive treatment of non-white applicants. In order to combat ’Conscious Racism’ against ethnic minority applicants, the HMPS had created a system based on both Conscious and Unconscious Racism against white applicants.
: Neither were HMPS staff instructed to follow the statutory duties imposed under the Race Relations Acts 2000, 2001 and 2003 in relation to their powers to reject applicants from groups they designated as ’racist’ and whose members they rejected for employment. This was in direct breach of the statutory duties imposed upon them under the various Race Relations Acts to monitor the policy and its effects on applications for employment and the effect the policy had on levels of racism within the HMPS. This meant any such racism against the whites who were refused employment was not picked up by the HMPS and therefore incapable of being addressed. Nor was any over representation of white groups, and white applicants for employment, being classified as racist and also being refused employment capable of being discovered and addressed.
: Neither were HMPS staff instructed to follow the mandatory policy monitoring rules within the HMPS in relation to their powers to apply the policy. That the policy was never monitored, assessed or investigated as per its effects on individual applicants of all races and also as per the impact of the policy on preventing racism within the HMPS.
Also that the Policy was unlawful in relation to ;
1) The European Convention on Human Rights Articles 8, 9, 10, 11 and 14
2 ) ECHR case law ( Communist Party v Turkey 1998 )
3) The Human Rights Act 1998 section 3 as the HMPS is a public body as defined under Section 6.
4) The Discrimination (Employment and Occupation) Convention (No. 111) concerning Discrimination in respect of Employment and Occupation ( International Labour Organisation) to which the UK is a signatory and to which the UK is bound
5) The Race Relations Act (Amendment) 2003 was based on a European Directive, Racial Equality Directive 2000/43/EC, and therefore has to be applied in a way that is in accord with other European Union rights and treaties including ; The Treaty of Amsterdam that came into force on May 1st 1999, the European Social Charter of 1991, the Community Charter of the Fundamental Social Rights of Workers 1989 and the ECHR itself. These EU rights explicitly state that discrimination on the grounds of political belief are prohibited under the EU treaties. Therefore the law states that any ban on any registered and legal political parties within the EU are unlawful. As the EU treaties explicitly recognise the validity of the ECHR then the ECHR case law has also to be read in accord with the EU rights. Any ban on the BNP by the HMPS as a Public Body is unlawful both under the EU treaties, the Race Relations Act 2003 (which is based on a European Directive) and also the ECHR case law. Therefore the Race Relations Act does not give any public body any right in law to remove any fundamental rights protected under the EU treaties and the ECHR and therefore the use of the Race Relations Act 2000, 2001 or 2003 to assert any right to ban members of the BNP from working for the HMPS is unlawful. The failure to abide by any of the statutory duties imposed upon the HMPS under the various Race Relations Acts makes an attempt to justify the policy under section 71 of the Race Relations Act 1976 as totally unfounded.
6) The ban on BNP members working for the HMPS is in direct breach of the law on vicarious liability as it unlawfully extends the remit of employers control over an individuals private life, and protected political activities, outside the employment place.
7) The Policy has been in direct breach of the statutory duties on the HMP under the Race Relations Acts of 2000, 2001 and 2003 both before and after its adoption and application. The Race Relations Acts specifically apply only to the work environment and impose statutory duties on employers and not employees. Any attempt to extend the parameters of the Race Relations Acts to both employees and their private lives outside the workplace is unlawful. The attempt to justify the policy on the grounds of section 71 of the RRA 1976 is both misconceived and unlawful.
8) The policy is and has been in direct breach of the HMPS own mandatory internal rules and procedures concerning the monitoring of HMPS policies since the policy was imposed in 2003
9) That the policy is in breach of the Wednesbury rules that require public bodies not to undertake acts and their functions in irrational, arbitrary, unreasonable and unlawful ways that damage the rights of individuals seeking employment within the public body ( X v Bedfordshire (1995) 2 AC 633 )
10) That the policy is being applied in an unlawful manner as per the Wednesbury requirements in relation to the HMPS definition of racism and racist groups as defined in the definition of racism adopted by the HMPS from the McPherson Inquiry which is the basis of the Policy. The HMPS have adopted a definition of ‘racism’ that is being applied only to the White racial group, organisations representing the white racial group and members of organisations of the white racial group who are applicants to the HMPS for employment.
11) At Paragraph 15 of the Employment Appeal Tribunal verdict the Honourable Mr. Justice Elias (Appeal no.UKEAT/0457/06/DM) makes reference to the issue that “ a blanket rule that precludes someone from being a member of a racist organisation, even for example where they keep their membership a secret or well away from the working environment at all, might not necessarily be justified at least simply on the basis that they belong to a racist group.
For example it may be necessary in those circumstances for the prison authorities to put forward reasons why a mere membership of itself, even if kept well away from the working environment, would still create difficulties for the service so as to justify a blanket policy. “
This is relation to the fact that a ’ legal racist group’ such as the BNP, which is a protected political party under the ECHR, whose members keep their politics out of the workplace cannot be the victim of a ban such as the one under the HMPS policy and nor can its members.
The Prison Service is a Public Body under section 6 of the Human Rights Act 1998 and under section (1) of the HRA 1998 it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
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The Tribunal is a public body listed under section 3 (a) and (b) and must give effect to both Mr.Potters rights under the ECHR and EU treaties as the Race Relations Act 2003, which this case is being heard under, is based on an European Directive.
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Damage ;
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The Redfearn dicta applies equally to all communities not just the white community.
At Paragraph 49 of Redfearn it states ;
“ Serco was not adopting a policy which discriminated on the basis of a dividing line of colour or race. Serco would apply the same approach to a member of a similar political party, which confined its membership to black people. The dividing line of colour or race was not made by Serco, but by the BNP which defines its own composition by colour or race. “
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At Para 54 of Redfearn v Serco is also states, “ The employment tribunal appears to have attempted itself a version of a "provision, criterion or practice" in paragraph 5.6 of its decision (see paragraph 28 above). However, it is formulated too narrowly (membership of the BNP) to be meaningful. A provision of "membership of the BNP" could not be applied to a person who was not of the same colour as Mr Redfearn, because only persons of the same colour as him (white) are eligible to be members of the BNP. A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP, which existed to promote views hostile to members of a different colour than those that belonged to the organisation. If such a provision were applied, however, it would not put persons of the same race as Mr Redfearn "at a particular disadvantage" when compared with other persons within section 1(1A) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were. “
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The dicta of Redfearn demands that any measure, rule or policy of a private body, and especially a Public Body as defined under section 6 of the Human Rights Act 1998, must be applied equally against all racial communities, all groups representing the interests of those racial communities, all members of those groups and all applicants who are members of those organisations for employment with those private or public bodies. All racial groups must suffer the same disadvantage as a result of the policy as all other racial groups.
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In order for the HMPS policy to satisfy the Redfearn Test an organisation such as the HMPS can only adopt a measure or policy that is ;
5A) Researched and assessed by each of the organisations listed in PARA 3 of the witness statement of David Woolger with the same objective intent to apply the policy equally in relation to every racial community, every group representing a racial community, every member of those groups and every member applicant of those groups for employment within the HMPS. A failure to research the existence of other racial groups from all racial communities of a direct similarity to the BNP by the HMPS at all stages of the consultation process prior to the adoption and application of the policy in 2001is direct evidence of an intention to apply the policy in a racist manner and racially discriminate only against the white community, white groups, white members of those groups and against white members of those white groups who applied for employment with the HMPS.
5B) If the intention of those formulating the policy at PARA 3 of the evidence of David Woolger, and the intent behind the application of the policy by the HMPS, was that the policy was designed to be applied equally to each and every racial community, then each and very racial community would have been investigated by the HMPS and its consulting bodies for the presence of those organisations within different racial communities of a similar nature to the BNP. They also would have been investigated and listed as proscribed organisations under the policy. This did not happen. All those non-white organisations that also came within the definition of a ’racist organisation’ as defined by the policy adopted by the HMPS, which in turn was based upon the Stephen Lawrence Report definition of racism which defined the nature and meaning of ’racism’ as per the HMPS policy, were not researched and listed. This use of the definition of racism as the basis of the policy was confirmed at Paragraph 11 of David Woolgers witness statement.
5C) There was no investigation into any non-white groups of a similar ‘racist’ nature to the BNP and therefore this is direct evidence that there was never any intention to apply the policy to other non-white groups from other non-white racial communities. Even when an non-white organisation was researched by the HMPS, and advice received from the Scotland Yard Police that the organisation was dangerous, then the HMPS still did not list the group as proscribed under the policy - this was The Nation of Islam as stated at at PARA 24 of the evidence of David Woolger. This means the policy was intended to be, and as a result is being applied, both intentionally and functionally in a racially discriminatory against only the white community, against white members of white only groups, against white groups and white applicants for employment with the HMPS who are members of those groups.
5D) In order for the HMPS policy to be lawful under the Redfearn dicta there must have been a proven systematic attempt, and systemic evidence, on behalf of the organisation intending to impose that policy, of a pursuit and intention to create and apply the policy in a way that is based on racial equality. This non-discriminatory assessment and research process thereby provides evidence whether the policy was and is intended to be applied in a non-racially discriminatory manner. Any failure at any level of the consultation process to follow a systematic and systemic process as regards non-racially discriminatory policy formulation also provides evidence as to the intended and actual application of the policy. Evidence is not just what is written on the page, it is also what is missing from the page. The fact that not one non-white group or organisation was investigated, proposed or listed under the policy means that this is direct evidence of an intention to discriminate. Many such non-white racist groups are widely known, such as the Nation of Islam and the International Sikh Youth Federation, and both of these groups were in existence before the formulation and imposition of the policy. There was no reason to not list these groups at the time of the formulation or imposition of the policy.
5E) The failure to follow before and after the imposition of the policy in 2001the statutory duties imposed upon the HMPS under the Race Relations Act 2000 and the Race Relations Act 2003 to assess and monitor the policy, and then the HMPS failure to monitor the effect of the policy both under the RRA 2003 and the HMPS own internal policy monitoring process and the HMPS own Racial Equality Strategy imposed in 2005 is very revealing. It appears that because the policy was only intended to apply to the white community, white groups, white members of those groups and white applicant members of those groups, that the HMPS thought they did not have to abide by the Race Relations Act 2000 and 2003 and their own policy monitoring processes. This is evidence of Institutional Racism within the HMPS against the white community, white groups, white members of those groups, white applicant members of those groups, white staff and white prisoners. The fact that the HMPS has been found guilty of racism against white staff in the case of Rose v HMPS is evidence of a failure to promote racial equality under the Race Relations Act 2000 and also support white applicants, white staff and white prisoners under the Race Relations Act 2003.
5 (2) That the policy be must be formulated and applied in such a way that it does not directly racially discriminate against just one racial community. The formulation process of the policy reveals evidence relating to the intended application of the policy. The application of the policy must also be non-directly racially discriminatory. The Redfearn dicta states that any measures or policy that is imposed by a Public Body such as the HMPS in the name of combating racial discrimination must be applied in a way that is not racial directly discriminatory against just one racial community.
5 (2) (A) That means members of the white community who organise into legal political groups to represent and promote their racial interests and who apply for employment within the HMPS cannot be disadvantaged or discriminated against by the HMPS unless all other non-white persons from similar non-white organisations suffer the same disadvantage and discrimination. The fact is that only members of the white community who join white only political groups, such as the BNP, and who apply for employment within the HMPS are being directly discriminated against under the policy is Direct Racial Discrimination. This is shown by the experience of Mr.Potter and also confirmed with the evidence provided of the comparators.
5 (2) (B) Organisations such as Combat 18 cannot be said to be protected under Article 11 of the ECHR as it is not a registered political party with the Electoral Commission that stands in elections in Great Britain.
5(2) (C) The BNP is a legal political organisation registered to stand in elections with the Electoral Commission. Under the ECHR Article 11, and ECHR case law, it is the most protected of organisations within the remit of ARTICLE 11.
5(2)(D) The ECHR case law also regards political parties as ( THE UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY - 19392/92 [1998] ECHR 1 ( 30 January 1998 ) as the most important and most protected of organisations in democracy ;
“ 25. However, even more persuasive than the wording of Article 11, in the Court’s view, is the fact that political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system (see paragraph 45 below), there can be no doubt that political parties come within the scope of Article 11.
27. The Court notes on the other hand that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions. As the Court has said in the past, while it is in principle open to the national authorities to take such action as they consider necessary to respect the rule of law or to give effect to constitutional rights, they must do so in a manner which is compatible with their obligations under the Convention and subject to review by the Convention institutions (see the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 29, § 69). “
The BNP as a legal registered political party with the Electoral Commission, and its members as well as the party as an organisation, as a result of registration as a political party have direct ECHR rights under Article 11 that this tribunal must give secure and give effect to, as this tribunal as well as the HMPS are Public Bodies as defined under the Human Rights Act 1998. The ECHR Article 11 provides not just rights able to be claimed by individuals but also by organisations such as the BNP.
Organisations which are proscribed under the Anti-Terrorism Act are listed as proscribed organisations and are thereby denied the right to legal protection under the ECHR Article 11. Also organisations such as Combat 18, which is not a registered political party, also cannot claim protection under the ECHR Article 11. The BNP cannot suffer any discrimination as an organisation by any organs of the state and public bodies such as the HMPS.
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Mr.Potter suffered Direct Racial Discrimination and Institutional Racism at the hands of the HMPS. He is a member of the White racial community and a white member of the BNP who when he applied for employment suffered extensive and institutional racial discrimination at the hands of the HMPS.
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But for the fact he was a member of the white racial community who had joined an white British mono-racial organisation, the BNP, and who then declared his membership of the BNP as required under the HMPS policy, he would not have been refused employment by the HMPS.
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But for the fact that the BNP as an organisation was directly racially discriminated against by the HMPS by being listed as a ’racist group’ under the definition of racism used by the
HMPS, and then designated as a listed group under the policy, he would not have been refused employment within the HMPS.
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But for the fact that the HMPS has adopted an unlawful and directly racially discriminatory policy towards the white community, and white organisations composed of members of the white community such as the BNP under the policy, he would not have been refused employment under the policy.
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10 >
But for the fact that Mr.Potter was a white applicant for employment with the HMPS he would not have been directly racially discriminated against under the policy by the HMPS.
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11 >
But for the fact that HMPS had formulated a directly racist discriminatory policy that was designed to only discriminate solely against the white community, members of white organisations, white members of those organisations and white applicants for employment with the HMPS then Mr.Potter would not have been directly racially discriminated against.
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12 >
But for the fact that the definition of racism used by the HMPS was applied in a way that only targeted and designated white organisations as racist organisations, then Mr.Potter would not have been directly racially discriminated against by the HMPS when he applied for employment.
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13 >
But for the fact that HMPS listed the BNP as an organisation under the policy, and Mr.Potter declared his membership of the BNP, then he would have stood an equal chance of gaining employment as a non-white member of a non-organisation not listed under the policy. That ethnic minority applicants for employment with the HMPS are not, and were not, as likely to be refused employment under the policy for being members of similar racist organisations to the BNP. This is because the failure to list any non-white organisations under the policy means that the HMPS and its employees, at all levels of the application process, are less likely to define those non-white organisations as racist and thereby prohibit the non-white member of that organisation from being employed by the HMPS. HMPS staff are not given any guidance or training by the HMPS on how to identify any racist organisations that should come under the policy and therefore this means non-white groups are less likely to be detected under the policy and denied employment within the HMPS.
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14 >
But for the fact that the policy was formulated and imposed in order to reassure ethnic minority staff and applicants of the HMPS that the HMPS were dealing with alleged white racism within the HMPS against black and ethnic minority prisoners ( As stated at PARA 2 of the witness statement of David Woolger ) then Mr.Potter would not have suffered direct racial discrimination under the policy when he applied for employment with the HMPS.
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15 >
But for the fact that the BNP was a listed organisation under the policy Mr.Potter suffered direct racial discrimination at the hands of HMPS employees at the application process levels ;
A) The pre-sift level
B) The Initial Sift Level
C) The Enhanced Security Check Level
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16 >
HMPS employees who assess Ethnic Minority applicants in similar non-white organisations to the BNP are not able to be refuse the non-white applicants employment at the pre-sift level, the initial sift level and the enhanced security check level of the application process without first informing the Resourcing Policy Unit ( as stated at PARA 15 of the evidence of David Woolger) and getting express permission from the RPU to refuse the non-white applicant the right to be employed within the HMPS. This is direct racially discriminatory against members of the white community, white organisations, members of white organisations and white applicants for employment in the HMPS.
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17 >
Race Relations Act ;
2003 No. 1626
RACE RELATIONS
The Race Relations Act 1976 (Amendment) Regulations 2003
Made 20th June 2003
Coming into force 19th July 2003
Racial discrimination
3. In section 1 of the 1976 Act (racial discrimination), after subsection (1), insert -
" (1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but -
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.
Meaning of employment at establishment in Great Britain
11. - (1) In section 8 of the 1976 Act (meaning of employment at establishment in Great Britain), in subsection (1), for the words "unless the employee" to the end, substitute -
" if the employee -
(a) does his work wholly or partly in Great Britain; or
(b) does his work wholly outside Great Britain and subsection (1A) applies".
(2) After subsection (1) insert -
" (1A) This subsection applies if, in a case involving discrimination on grounds of race or ethnic or national origins, or harassment -
(a) the employer has a place of business at an establishment in Great Britain;
(b) the work is for the purposes of the business carried on at that establishment; and
(c) the employee is ordinarily resident in Great Britain -
(i) at the time when he applies for or is offered the employment, or
(ii) at any time during the course of the employment.".
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18 > The Policy
The Prison Service Policy was introduced in PSI ( Prison Service Instruction ) 42/2001. The policy became part of a Prison Service Order in 2003.
The policy as stated at Para 3 of the statement of Paul Davis states that “ staff would be prohibited from being members or organisations considered to have a racist philosophy, principles, aims or policies’ .
This is not the same definition of the policy as stated by David Woolger at Para 3 of his evidence. This definition is ‘ H M Prison Service has a policy of prohibiting people who work for it from being members of groups or organisations considered to have racist philosophies. In particular no-one working for HMPS can be a member of the British National Party (BNP), the National Front, combat 18 or any other group or organisation promoting racism’
Elizabeth Horton also has another definition of the policy at PARA 5 which is ’ HM Prison Service has a policy of not employing people who are members of groups or organisations considered to have racist principles and aims’.
Alison Gilbert also has another definition of the policy as stated at paragraph 4 of her evidence that ’ If she had stated she was a member of the British National Party, the National Front or Combat 18 then her application would have been rejected, under the policy on membership of racist groups. ’
Sharon Granton also has another definition of the policy at PARA 6 where she states “ This is because the Prison Service has a clear policy that it will not recruit members of racist groups “.
Caroline Rostron also has another definition of the policy at paragraph 13 of her evidence that ’ The Prison Service has a policy of prohibiting membership of racist groups ’.
Therefore it appears that each of the witnesses each have a different interpretation of the policy itself, which is in breach of both The Race Relations Act but also the requirement for certainty under the ECHR.
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19 >
There exists a difference between the Policy and the groups listed under the policy - that the policy gives specific authority to expel membership only for those listed groups and that a person dealing with ethnic minority groups that may come under the policy have to contact RPU for guidance and permission to be able to refuse them employment in the HMPS as stated at PARA 15 of the statement given by David Woolger.
That is direct racial discrimination against the white British racial community, white British racial organisations and members of white British organisations. This is because only white applicants from the white community who are members of white only mono-racial organisations that are proscribed under the policy as a racist group or organisation are able to be refused employment at the initial sift level as stated at PARA 14 of the statement by David Woolger.
Four Stages for the different racial groups-
(1) all white members of BNP, NF and C18 can be refused employment at the pre-sift stage of the application process as the policy gives a direct mandate to refuse them employment as they are proscribed groups. At this stage black applicants cannot be refused employment.
(2) whites may be able to be refused employment at the initial sift level - those on proscribed list can be refused employment at initial sift stage such as those discovered to be in the BNP, NF and C18 that may have slipped through the vetting net. Black applicants may also not be dismissed at this stage.
(3) The process of declaring an Ethnic Minority group as coming under the policy is this ;
(A) firstly the classification of the ethnic minority group as a racist group has to be checked with the RPU and approved its before it can be classified as a racial group
(B) then the RPU confirms that the ethnic minority group comes under the policy as a racist group
(C) thirdly the RPU confirms that the ethnic minority applicant can be refused employment under the policy as being a member of that racist group
(4) The final stage is that the individual ethnic applicant is sent a formal rejection letter
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20 >
Differentials in treatment ;
a) In relation to the Race Relations Act 2000, the Race Relations Act 2003, the Race Equality Strategy 2005 of the HMPS and the HMPS internal policy assessment monitoring schemes since 2001 the policy was not assessed before being imposed and applied to whites and not non-whites.
b) In the listings only white groups are proscribed not any similar non-white organisations. That the HMPS had applied two different standards in the assessment and classification of mono-racial groups that was racist. That mono-racial white groups are regarded and classified as racist under the HMPS racism definition whilst identical non-white groups are not regarded or classified as racist under the HMPS definition of racism eg the BNP and the Black Police Officers Association . This is in breach of the Redfearn v Serco case law.
c) No non-white groups were assessed prior to the policy being imposed during the consultation stage, nor were any non-white only groups recommended for listing on the proscribed list by the HMPS or the groups that advised the HMPS when the policy was imposed
d) no research was undertaken into allegations of BNP involvement in any incidents of racism amongst prison staff and the policy was enacted only in relation to white groups as the assumption of the HMPS was that racism was a white problem affecting only non-white groups. That the failure to investigate if any non-white groups had been involved in racism within the HMPS is evidence of the Direct Racial Discrimination at the Institutional level. That the failure to investigate of white staff or white inmates had been the victim of racism by non-white staff or had been the victims of white on white racism demonstrates Institutional Racism and Direct Racial Discrimination against white applicants, the white community, white groups, white staff and white prisoners.
e) Only white applicants from the white community who are members of the listed white groups can be refused employment at the pre-sifting stage because they are specifically listed as members of proscribed groups. Their applications do not have to be approved for refusal by the RPU before they can be refused employment.
f) only white applicants can be defined as racist and refused employment at the initial sift stage if they are discovered as being members of the BNP, NF and C18. Their applications do not have to be passed to the RPU and confirmed as coming under the policy before they can be refused employment.
g) non-white applicants of non-white groups cannot be refused employment at the pre-sift stage for being members of racist groups unless their applications are passed to the RPU and the group they are members of is classified as a racist group. This is because they are not listed as proscribed under the policy.
h) non-white applicants of non-white groups cannot be refused employment the at initial sift stage unless the unless their applications are passed to the RPU and the group they are members of is classified as a racist group and they are then designated as racists who can be refused employment under the policy.
i) all non-white groups have to be directly referred to the RPU before they can be listed as racist groups. The fact that no central list exists of non-white groups that are proscribed under the policy is evidence that the policy is designed to assist the interests of the non-white applicants. This is because the ethnic minority member of an small, not well known, racist organisation will be much more likely to slip through the vetting process as demonstrated with the comparators provided by Mr.Potter. The fact that HMPS staff are not trained in the use, interpretation and application of the policy, not provided with guidance or training as to what is a racist group and not provided with an up date list of non-white organisations that are classified as racist under the policy in order to assist in the identification of racist groups is evidence of an intention to directly discriminate in favour of ethnic minority groups and ethnic minority applicants. None of the staff given the discretion to apply the policy have any qualifications in the discovery, understanding, links and identities of racial groups of any community.
j) Non-white members of racist groups have to be declared as members of a racist group by the RPU and classified as racists by the RPU before they can be refused employment at the Enhanced Security check level. The fact that white applicants are sifted out at the pre-sift stage and the initial sifting phase is a disadvantage to the white community, white applicants, white groups and white members of the BNP and a direct advantage to non-white groups, the non-white communities and the non-white applicants.
k) the policy is unlawful under ECHR and ECHR case law - article 8, 9, 10,11, 14, 17 and 18
l) The policy is unlawful under EU rules as policy cannot use the RRA duties to remove fundamental rights protected under EU treaty as RRA 2003 a European Directive
m) policy unlawful under administrative law requirements as the HMPS is a public body and there is no monitoring of the discretion of the adjudicators and no right of appeal as required in relation to the exercise of an administrative power that damages the rights of an individual under the Human Rights Act and the ECHR
n) policy unlawful under Human Rights Act 1998 as HMPS a public body and must guarantee ECHR rights to applicants
o) policy unlawful under ECHR case law as not in accord with administrative law for public bodies eg the listing of non-white groups and rejection of BNP member applicants is not required in the circumstances ( unfounded allegations of racial incidents involving BNP member HMPS staff)
p) the policy been in breach of RRA 2000 and RRA 2003, Race Equality Strategy 2005 as the policy has not been monitored or assessed since its imposition in 2001
q) That no research or assessment of any problems relating to anti-white racism, to the racism of ethnic minority groups against white staff and prisoners, of racism of whites against whites or racism by ethnic minority staff against white prisoners since the RRA 2000, the RRA 2003, the Race Equality Strategy of 2005 or in relation to assessing the HMP race relations policy internal monitoring systems themselves.
r ) The policy unlawful as BNP a legal, registered political party most protected under Article 11 - Communist Party case
s) The policy is Direct Racial Discrimination against the white community, white organisations and applicants who are members of white organisations and also is directly racially discriminatory against the BNP - as stated in the Redfearn v Serco which stated that the BNP a white British organisation specifically for white British people.
t ) The policy is an abuse of the RRA as the RRA only applies to activities in the employment sphere and cannot be used to extend remit of the HMPS into the private lives of an individual
u ) That the policy is in direct breach of employment law case dicta regarding vicarious liability and the limits to the rights of employers to interfere in the rights of employees outside the workplace
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21 >
Background to the case ;
1) There was no basis for the ban on the BNP within Prison Service as there was no evidence of white staff involved in racism or the BNP involved in any problems in the prison. There was no objective or logical basis for the ban as required under the ECHR. There were no white staff sacked for involved in racism ever been members of the BNP. There has been one officer sacked for wearing an England badge who was not a member of the BNP. There was no logical reason why the ban was brought into force against those specific groups listed under the policy as there was no evidence of any problems relating to those groups available or even taken into consideration (as stated in evidence by Martin Narey at the Zahid Mubarek inquiry). There was no reason why the policy was only limited to white groups and not other ethnic political or religious groups. By only limiting it to whites is in effect saying ‘ we will stop white racist groups joining the Prison Service, but not black , Asian or other racist groups, as we want to reassure ethnic minority staff members that we are not a racist organisation’ - in other words they tacitly condone and accept anti-white racism in order to prove the Prison Service is not racist against ethnic minority groups or that it tolerates white racism. That is not a lawful reason as held in Showboat Entertainment Centre LTD V Owens (1984) IRLR 7, EAT which held that Section 1 (1) A of the RRA 1976 covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or some other person. In this case members of the white British racial group, members of white British racial organisations and white British racial applicants are being discriminated in favour of reassuring minority staff employed by the Prison Service. The only question is whether the unfavourable treatment afforded to the claimant was caused by racial considerations. In this case the racial considerations refer to making ethnic minority staff and applicants feel happy knowing that ‘white racism’ was being dealt with by the HMPS. The Prison Service wanted to show that it treated racism against ethnic staff seriously and that it would not tolerate white racism. The motive in both is racial grounds. It is a truism that tyranny is often substantially aggravated when it is depicted as moral.
2) The policy was bought in solely as a ‘sop’ to critics of the Prison Service after its breach of duty of care to Zahid Mubarak on Tuesday March 21st 2000 in Feltham Prison and the Prison Services duty of care to his mentally ill killer. The Prison Service placed a mentally ill white youth Robert Stewart , a diagnosed psychopath, with a history of racist violence and violent mental illness and self harming in a cell with a vulnerable Asian youth. It was obvious that the killer should not have been placed in that cell and the ban was the Prison Services crass way of diverting attention from its responsibility for the death. Martin Narey wanted to reassure the media who were calling the killing a ‘racist’ killing that the Prison Service was not racist. The ban was also enacted to ’reassure’ ethnic staff as a result of the Zahid Mubarek death.
3) This is proof that the policy was intended from inception to discriminate against and apply only to whites in order only to reassure ethnic minority staff due to media calling the Prison Service ‘racist‘ and also to be seen to be dealing with ‘racist attacks in London prisons‘ even though no evidence of any racism involving either the BNP or by white staff against ethnic minority prisoners or staff ever existed. For the Prison Service to discriminate against the white community, white only organisations and white members of those organisations in order to ’reassure’ ethnic minority potential applicants, staff and prisoners that it is not a ‘racist’ institution is not allowed under RRA as this is a Directly Discriminatory motive that discriminates against the white racial community. This is unlawful under the dicta of Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7, EAT.
4) The fact that the policy was stated at PARA 3 of the statement of David Woolger to deal with alleged racist incidents in London prisons is also revealing as there is no evidence of any BNP members being involved in any racist attacks on HMPS staff or prisoners.
This is confirmed in the evidence of Martin Nary as given in the Zahid Mubarek Inquiry. It was all anecdotal with no evidence. The HMPS wanted to be seen to be doing something about Racism and decided to kick out by banning the BNP, NF and C18.
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22 >
The Definition of Racism and Racist Groups
1) The definition of racism used by the Prison Service and its staff is allegedly that as defined in Para 11 of the statement of David Woolger. Not one of the witness statements other than David Woodgers makes any attempt to define racism, and also what is a racist group. The only way the BNP can be described as a racist organisation under the McPherson Inquiry definition of racism used by HMPS is because the BNP seek to advantage one group, the White British, by allowing them membership of the BNP and also by disadvantaging non-white British people by refusing them permission to join the BNP. This is a definition of racism that can apply to every black only group or organisation in the country as well as the BNP, including the Black Police Officers Association.
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23 >
The Definition of the BNP, NF and C18 as racist groups.
a) The fact the BNP, NF and C18 are all classified as racist groups under the policy is based solely on only two clearly identifiable logical foundations - the fact that they all white British only mono-racial organisations and that they exclude non-white British persons from membership. The BNP is a legal, registered political party that stands in elections with presently over 60 democratically elected councillors and a paying membership who have contractual and constitutional rights. The NF is a registered political party that stands in elections with no elected councillors. The only link between the BNP and NF and to C18, which is a group that has no membership or structure and that exists in name only, is that they are all classified as racist groups by the HMP.
b) C18 is not a registered British political party, it is not an unincorporated association as recognised in law like the BNP and NF, it has no legal membership, no paying members, no constitution, it does not stand in elections and exists only in name. Therefore the only logical analysis that can be used to link the three groups is that they are ;
ss 1) All white only groups defined on the basis of the race of their members - this being White British by the HMP
ss 2) All exclude all non-white British from membership, or perceived membership, of the group
ss 3) that as a result of 1 and 2 that they are classified as racist groups by the HMP
ss 4) That they are all proscribed under the policy of the HMP as banned listed groups
ss 5) That members of those groups are declared as racists by the HMP
ss 6) That members of those groups may be denied employment under the policy by the HMP
It is solely the fact that the BNP, NF and C18 are perceived as White British only racist groups that exclude non-white British persons that is the basis of them being listed under the policy by the HMP.
c) Contrary to the Serco case it is not the BNP’s self imposed membership criteria that is being used by the BNP to sustain an argument for racial discrimination against the HMP, rather it is the HMP’s decision to define the BNP, the NF and C18 as ‘racist groups ‘ under the policy because of their White British only membership and then deny their members the right to employment that are the issues. What is also an issue is the HMP’s failure to classify racist organisations in a way that is not racist against a single community and also its duty to exercise and apply that power in a way that does not directly racially discriminate against solely one community - in this case the white British racial community, against solely white British groups that represent the interests of the white British racial community and solely against white British applicants for employment..
d) The fact that the BNP, NF and C18 are defined under the policy as racist groups would not be capable of coming under the category of direct racial discrimination if the policy itself was lawful. It is not the self imposed membership criteria of the BNP that is the issue in this claim for direct racial discrimination. If the policy was lawful and being applied lawfully against all racial groups equally then the HMPS can theoretically classify any groups they wish as racist if they fit the objective non-racist criteria for being a racist group.
e) In this case other mono-racial non-white organisations that could be and that should be listed as racist groups under the policy are not listed under the policy and also the policy is only being applied in a way that directly discriminates solely against whites as a racial group, that the policy directly discriminates only against whites as a racial group when they become members of legal mono-racial white groups in society and that the policy directly discriminates only against white applicants for employment within the HMP.
f) It is not illegal to be a member of the BNP. It is not illegal to set up a group based on race, to exclude other races from that group and allow members of a group join that group based solely on their race. It an entirely legal thing to do. In fact it even celebrated as a function of multi--culturalism itself, just as long as the people doing it are not white of course.
g) The Black Police Officers Association and the Black Lawyers Association are both legal groups that should be listed under the policy as racist groups but they are not. They also seek to advantage one group, non-white Black British people, by allowing them to join the organisation and at the same time disadvantage white British people by refusing them permission to join the organisation.
They are both ;
1) Black only groups based on race representing only blacks and their black members on the grounds of their ethnicity, racial origin or race
2) They exclude all whites from membership on the grounds of their race, ethnicity or racial origin
Like the BNP they are both legal, unincorporated associations, with paying memberships whose members have constitutional rights - but the Black Police Officers Association and Black Lawyers Association are not banned from being members of the HMP. Both the BPOA and BLA were established organisations when the policy was imposed.
h) Racist groups like the Nation of Islam that have murdered hundreds of white in the US, that classify whites as devils and Jews as pigs and that preach race hatred against whites and jews are also not banned under the HMP policy. They preach against race mixing, want black separatism in British society and ban white and black marriage. They were not classified as a racist group when the policy was being formulated, they were not classified as a racist group and prescribed under the policy when the policy was imposed, they have not been classified as a racist group under the policy since 2001, their members are allowed to be employed by the HMP, they are allowed to be interviewed for employment with the HMP and their members are actually working within the HMPS. The Nation of Islam was established in America in 1930 and in the first Nation of Islam mosque was established in the UK in 1997. They could also have been listed under the policy but they weren’t.
I) The Sikh Federation is organisation that is an offshoot of the International Sikh Youth Federation who are a terrorist group proscribed in India on the 22nd March 2002 whose members were involved in the bombing of Air India Flight 182 that fell into the sea of the coast of Ireland in 1985 with the deaths of 329 people on board and other terrorist atrocities. Members of the ISYF formed the Sikh Federation in the UK in September 2003 after the ISYF, its previous incarnation, was proscribed by the UK government under the Anti-Terrorism Act in 2001. The Sikh Federation raises funds from the Sikh diaspora in the UK to fund the ISYF abroad and also helps fund its terrorism. Other splinter groups from the ISYF operate in the UK such as the Damdami Taksal (DDT), Chaheru Bitoo and Gill factions. The US state departments Annual Patterns of Global Terrorism Report 1999 listed the ISYF as an active terrorist group. The ISYF is listed as a proscribed organisation in the UK under the Anti-Terrorism Act. The Sikh Federation campaigns for the UK government to lift the ban on the ISYF - this is a direct aim of the organisation and one of its policies. One can be an ex-member of the ISYF and an active member of the Sikh Federation, and an active member of other Sikh terrorist groups, and be employed by the HMPS.
j) It is the fact that groups like the Nation of Islam, Sikh Federation, the BPOA, and the BLA are not defined as racist groups under the HMP policy, not prescribed under the policy, their members not defined as racists by the HMP and their members not denied employment by the HMP as required under the Serco dicta that makes the policy unlawful and Mr.Potter the victim of direct racial discrimination.
k) Whites suffer under direct racial discrimination under the policy on the following grounds ;
1) Mono-Racial non-white groups are not classified as racist groups in the same way that mono-racial white only groups are classified as racist under the policy
L ( s2) No attempt to research or list any non-white mono-racial groups under the policy was ever made before the policy was put into effect showing a direct intention on the part of the HMP to apply the policy only against the white community, white groups and white applicants for employment.
L ( s3) That the policy was intentionally conceived, imposed and is being applied in a way so as to directly discriminate against members of the White British racial community, white British members of White British associations and against white British applicants for employment.
L (s3) No attempt to analyse whether the failure to list any non-white mono-racial racial groups under the policy was lawful was made before the policy was imposed as required under the RRA.
L (s4) No attempt to see if the policy was racist against whites and white members of mono-racial organisations was made before the policy was imposed as required under the RRA.
L (s5) No non-white racial groups been penalised as being declared as racist groups under the policy.
L( s6) No non white mono-racial groups have been penalised by being listed as being proscribed under the policy.
L (s7) No non-white mono-racial groups have ever been listed since 2001.
L (s8) No non-white applicants who are members of mono-racial groups that should be classified as racists under the policy for being members of racist groups and denied employment under the policy are denied employment by the HMPS.
l) There does not have to be ’conscious racism’ by the Prison Service in relation to their Direct Discrimination against whites in order for racial discrimination against the white community, white groups and members of white groups who are applicants to actually exist. It is not necessary to prove that someone intended to discriminate against an individual or racial group: it is sufficient only to show that the outcome of their action was that the individual or racial group received less favourable treatment.
This point clarified in Laing -v- Manchester City Council (IDS 814) 2007 where the existence of ‘unconscious’ as well as ’conscious’ racial discrimination was recognised. Another case that recognises Unconscious Racism is defined within Nagarajan v London Regional Transport HL times 19-July-99. Unconscious racism is that as defined in the statement of Martin Narey that the policy was brought in to ’reassure’ ethnic minority staff that the prison was determined to tackle ’racism’. The fact that the only form of racism recognised as being in existence in the Prison Service, without any evidence in fact of it existing at all as stated by Martin Nary, was racism against ethnic minority groups or individuals by whites. The very fact that the Prison Service did not recognise that whites may also be VICTIMS of racism by ethnic minorities, and indeed fellow whites, is proof of both conscious and unconscious racism against whites.
It is true that as the definition of racism includes national origins then an Welsh HMPS employee may racially bully an English prisoner or member of staff. Or a Scottish HMPS employee may bully a German employee of the HMPS. The fact that no research into such incidents of racism have ever been undertaken by the HMPS is also illustrative of the Institutional Racism of the HMPS.
m) In King v The Great Britain-China Centre [1991] IRLR 513, it states that it is unusual to find direct evidence of racial discrimination. This is recognition of the fact that few employers admit discrimination and that in many cases, discrimination is unconscious or based on assumptions and stereotypes.
At Para 49 of the Redfearn V serco case it states “ This is a very different case. Mr Redfearn was treated less favourably not on the ground that he was white, but on the ground of a particular non-racial characteristic shared by him with a tiny proportion of the white population, that is membership of and standing for election for a political party like the BNP. Serco was not adopting a policy which discriminated on the basis of a dividing line of colour or race. Serco would apply the same approach to a member of a similar political party, which confined its membership to black people. The dividing line of colour or race was not made by Serco, but by the BNP which defines its own composition by colour or race. Mr Redfearn cannot credibly make a claim of direct race discrimination by Serco against him on the ground that he is white by relying on the decision of his own chosen political party to limit its membership to white people. The BNP cannot make a non-racial criterion (party membership) a racial one by the terms of its constitution limiting membership to white people. Properly analysed Mr Redfearn's complaint is of discrimination on political grounds, which falls outside the anti-discrimination laws. “
n) In this case it is not the BNP which have made the white racial membership of the party the basis of a complaint that the policy is racist because the BNP is a whites only organisation, it is the Prison Service themselves who have banned the BNP from membership of the HMPS on the basis of its non-white membership and refusal to accept non-white members. The HMP have made the policy a racist policy by specifying that it is the racist nature of the BNP ( this being an all white organisation that refuses non-whites into membership) which is the basis of the BNP being defined as a racist organisation. Therefore any policy which applies only to white only groups can logically only be applied against members of the white community and only white applicants.
o) t is solely the fact that the BNP are defined as racist for being an all white organisation by the HMP that brings the BNP directly under the remit of the policy according to the HMP. The HMP are therefore applying the policy in a racist manner only against the white community, white applicants and unlawfully against white BNP members. This is in direct breach of the Redfearn dicta that the HMP is required to ban other non-white racist organisations and also prohibit members of similar political parties or organisations that also have only a mono-racial membership from the HMP. This has not been done since the policy was enacted by the HMP in 2001.The policy has never been reviewed, applied to non-whites groups, applied to any non-white organisations and nor have any members of the ethnic minority communities ever been prohibited from working for the HMP even though they are in organisations that clearly breach the policy. The legal requirement that organisations with a similar mono-racial characteristic to the BNP be listed under the policy - eg the comparators Nation of Islam and the Sikh Federation has not happened.
p) The HMP call the BNP racist solely because it has a whites only membership and because it refuses to allow non-whites into membership - therefore it is not the BNP who are making a non-racial criteria, this being membership of a political party, the definition of a racist organisation it is the HMP. It is logically impossible for the HMP to say that they are not defining the BNP as a racist party because of its policy of only having an all white membership and for not allowing non-white members into the party. It is precisely the fact that the BNP is an all white organisation that does not allow non-whites into the party that is the basis of the HMP policy to ban BNP members from working for the HMP. If the BNP did allow non-whites into the party, as the Labour Party, Conservatives and Liberals do, then the HMP would be unable to ban BNP members from joining the HMP under the policy. It is this racist membership criteria of the BNP that restricts membership to white British people only, and not the BNP’s politics or political manifesto, that is the basis of the ban on the BNP in the HMPS. This is confirmed in the statement of David Woolger at Para 11 where the Stephen Lawrence Inquiry definition of ’racism’ is used to classify the BNP as a racist party because it is considered as an organisation that seeks to advantage people because of their colour, culture or national origin ( the White British ) and disadvantage others by refusing to allow them into membership of the BNP ( Non-White British people ).
q) The questions the HMP have to answer are ;
1) Does the HMP consider the BNP a racist party - yes it does
2) Why does the HMP consider the BNP a racist party - because of its all white membership and because it does not allow non-whites to join the party and because it seeks to advantage one group, the White British, by allowing them membership of the BNP and at the same time disadvantages another group, non-White British people, by refusing them permission to join the BNP.
Therefore it is not the BNP who are attempting to define membership of a political party as a racial provision and use it for their benefit, it is the HMP themselves who have racialised membership of the BNP and categorised it as a whites only racist organisation under the policy itself and by so doing are applying the policy in a discriminatory way and damaging way only against the white community itself, white only organisations and white applicants for jobs in the HMPS.
The fact is that the policy as it is can only apply to members of the white racial community, white members of white organisations and white applicants for employment which is defined as racism under the redfearn dicta. The BNP do not define themselves as a racist party, it is the HMP whose policy defines racism as membership of the BNP.
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24 >
At Para 54 of Redfearn v Serco it states, “ The employment tribunal appears to have attempted itself a version of a "provision, criterion or practice" in paragraph 5.6 of its decision (see paragraph 28 above). However, it is formulated too narrowly (membership of the BNP) to be meaningful. A provision of "membership of the BNP" could not be applied to a person who was not of the same colour as Mr Redfearn, because only persons of the same colour as him (white) are eligible to be members of the BNP. A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP, which existed to promote views hostile to members of a different colour than those that belonged to the organisation. If such a provision were applied, however, it would not put persons of the same race as Mr Redfearn "at a particular disadvantage" when compared with other persons within section 1(1A) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were. “
The attempt by HMP to say because they have a policy which prohibits members of the BNP, NF and C18 from being employed by the HMP that such a policy thereby applies to people of all races and colours in such organisations is nonsense. As stated in para 54 of the Redfearn case membership of the BNP is explicitly recognised as an ethno-specific organisation for white British people only, and therefore because the policy is being applied only against white groups then only whites are suffering a detriment due to the policy.
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25 >
It is a fact that the case law in the Redfearn case states that “ A provision of "membership of the BNP" could not be applied to a person who was not of the same colour as Mr Redfearn, because only persons of the same colour as him (white) are eligible to be members of the BNP “. Therefore in order for the requirement that the policy be lawful then the policy must explicitly state what organisations whose membership comprises solely of ethnic minorities are classified as racist groups under the policy and also what organisations with an non-white membership of a similar nature to the BNP are directly proscribed under the policy itself.
The failure to provide such a list of political or religious organisations whose membership is explicitly limited to ethnic minorities is also potentially racist against ethnic minority applicants as it allows officers of HMP to reject ethnic minority applicants for any reason at all for membership of any organisation, and thereby may be used to mask racist actions by HMP staff such a rejecting black or Muslim applicants whenever they apply for a job within the HMP for their membership or a perfectly legitimate body or organisation.
This is in direct breach of the Wednesbury case requirements that administrative law decisions by public bodies must not be arbitrary, unreasonable and open to abuse by public officials exercising a power over individuals such as in applying for employment with the HMP. The fact that the policy has never been assessed or studied to ascertain whether it is being used in an arbitrary, racist and unlawful manner suggests that the policy is being applied in an arbitrary, racist and unlawful manner.
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26 >
What the HMP policy breaches is the requirement in para 54 of the Redfearn case “ A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP, which existed to promote views hostile to members of a different colour than those that belonged to the organisation. If such a provision were applied, however, it would not put persons of the same race as Mr Redfearn "at a particular disadvantage" when compared with other persons within section 1(1A) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were. “ This is where the HMP policy breaches the law as the HMP policy has not been applied in the same way as regards ethnic minority communities, ethnic minority organisations and ethnic minority applicants of those organisations as it has been applied against the white British racial community, the white community organisations that represent the interests of the white community and White British applicants. The policy has not, and is not, being applied in the same way against non-white applicants of those non-white groups who are members of similar organisations to the BNP - the comparators prove this.
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27 >
The Comparator Issue ;
Even the bogus application letter provided by the prison service refusing the Pakistani applicant an interview cannot support the contention that the policy has been applied to other groups. The fact is that Combat 18, a whites Aryan only neo-Nazi organisation would have not allowed a Pakistani member in its ranks, and also that it does not have a membership as such.
Therefore the statement by the Pakistani applicant that they had been a member of Combat 18 was either ;
1) a false statement given in order to ensure they did not get the job. People in receipt of unemployment benefit are required to prove they are applying for jobs in order to claim benefits. In this case the applicant may have applied for the job with the Prison Service and made the statement that he had been a member of Combat 18 with full knowledge that the policy would prohibit them from working with the HMPS, but that by simply sending off the application form for a job that this would then be enough to secure them their unemployment benefit.
2) The person making the statement had mental health issues
3) The applicant had been asked to provide the application to the Prison Service as part of some attempt to assist in this case - the date of the application for the Pakistani applicant is after this case had been lodged with the Employment Tribunal.
4) That the application was a completely bogus application fabricated by an employee of the Prison Service in order to try and assist in this case. The fact that the details of the Pakistani applicant are blanked out and that we cannot call them as a witness to ascertain the validity of the application means it cannot be regarded as good evidence. The fact that no photograph was provided with the application and also no National Insurance number to ascertain the applicant actually existed suggests that this was a bogus application form provided in order to assist the HMP case.
5) The fact is the Pakistani application cannot in any way be regarded as comparator with the Potter application and refusal for employment. In the Potter application the refusal letter explicitly states that Potter is refused employment under the policy because he is a member of the BNP as required under the Policy - in the Pakistani application no such explicit reference to the policy is made. This is stated at PARA 12 of the evidence of Caroline Rostron. In fact the documents filled in by the Pakistani applicant reveal that the applicant was a discharged bankrupt and also that they failed to provide both their counter signed picture and a National Insurance Number that would have allowed them to legitimately work both for the Prison Service and in the UK. All of these are grounds to refuse the applicant employment under other prison service policy requirements, as highlighted in the supporting HMP documentation provided with the Pakistani application, and therefore the suggestion that the Pakistani application may be of some use as evidence that the policy is being applied to non-whites is unsustainable.
6) Case Dicta re Arthur Redfearn case defines when it is allowed and this in breach of it - not being applied equally to all racial groups as a policy - THE LIKE FOR LIKE RULE NOT BEING APPLIED as required under the Redfearn dicta, Court of Appeal case. Comparator - issue , could not stop groups like Nation of Islam joining the Prison Service as not listed as one of the banned organisations. Brown V London Borough of Croydon 2006 - comparator case to list here. Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 289 - the Court of Appeal ruled that Inferences could be drawn from evidence in this case that the applicant’s treatment was tainted with racial discrimination. The tribunal should have asked itself if he was treated differently from the way a hypothetical comparator would have been, and if so whether on ground of his race.
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28 > Shifting burden
In discrimination cases, the first stage is for workers to identify facts from which a tribunal could conclude that there has been unlawful discrimination.
The burden of proof then passes to the employer for an explanation at the second stage.
In Laing -v- Manchester City Council (IDS 814), the Employment Appeal Tribunal (EAT) has confirmed that a tribunal does not always have to go through both stages if it is satisfied, from all the facts, that the employer did not discriminate against the claimant.
The EAT clarified that “ultimately the issue is whether or not the employer has committed an act of race discrimination.
“The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.”
The focus of the tribunal's analysis must therefore always be whether or not they can properly and fairly infer race discrimination.
If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then “that is the end of the matter”.
In discrimination cases, the law says that the claimant has to identify facts from which a tribunal could conclude that there has been unlawful discrimination, in the absence of an adequate explanation.
The burden of proof then shifts to the employer to prove otherwise. If the (nondiscriminatory) explanation is not adequate, the tribunal has to find the discrimination proven.
The Court of Appeal has now confirmed - in Wong v Igen Ltd and ors, Emokpae v Chamberlin Solicitors and anor, and Webster and ors v Brunel University - that the shifting burden of proof requires tribunals to adopt a two-stage approach. It also approved and strengthened the guidelines issued in Barton v Investec Securities Ltd (2003, ICR 1205). Thompsons were instructed in the Webster case by the AUT.
What was the central issue?
Although the facts in these conjoined appeals were very different, they all raised questions about how to interpret and apply the shifting burden of proof in race and sex direct discrimination cases. The same principle also applies to disability, sexual orientation and religious and belief discrimination cases.
What did the courts decide?
Wong v Igen Ltd: Ms Wong (who was of African-Caribbean origin) was employed by Leeds Careers Guidance. She complained of race discrimination, harassment and victimisation. The tribunal dismissed two of her claims, but held that it could infer discrimination in the absence of an adequate explanation for her third claim. The employment appeal tribunal (EAT) dismissed the employer's appeal, and the appeal court agreed.
Emokpae v Chamberlin Solicitors: Ms. Emokpae (a Nigerian) claimed she had been dismissed because of rumours that she was having a relationship with the office manager. She argued this would not have happened had she been a man. Again, the tribunal went through a two stage process, relying on the Barton guidance. It found in Ms Emokpae's favour and the EAT agreed.
The Court of Appeal concluded that the tribunal had failed to establish the facts from which it could have concluded there had been an unlawful act of discrimination. The case therefore failed at the first stage.
Webster v Brunel University: Ms Webster (who was of Asian origin) was having a telephone conversation with another employee when she heard someone else in the background use the term "Paki". It was not clear whether that person was an employee.
The tribunal said that she had not established facts from which it could conclude that there had been discrimination.
The EAT disagreed, but the Court of Appeal agreed with the employment tribunal. It said that she had to show, on the balance of probabilities, that the respondent had done the unlawful act.
It was not enough, as the EAT had suggested, that there was a possibility that the unlawful act was done by the respondent. It was for Ms Webster to show that the alleged discriminator had treated her less favourably.
The Court of Appeal also revised the guidance in Barton as follows, to establish a two-stage test
Stage one
1. The claimant has to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination.
2. At this stage a tribunal should consider what inferences could be drawn from them, and must assume that there is no adequate explanation for them. It must not take the employer's explanation into account at this stage.
Stage two
3. If the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably, then the burden of proof moves to the respondent.
4. It is then for the respondent to prove, on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of race, sex, disability, religion or belief or sexual orientation.
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29 > Arguments on Direct Racial Discrimination.
1) Direct racial discrimination section 1 (1) A of the RRA 1976 ( as amended by the 2003 ) occurs when you are able to show that you have been treated less favourably on racial grounds than others in similar circumstances. We do not have to prove that Prison Service intended to discriminate, just that Mr.Potter received less favourable treatment as a result of what they did. In Solowo-Coker v Highways Agency [2001] ET 2300595/00 the Court of Appeal held that It was appropriate in this case to draw an inference of race discrimination. The failure to promote was more related to preconceptions and stereotypes about the applicant as an African man than to do with his work history. This also relates to the stereotypes regarding racism as solely being a problem of the white community. The Prison Service in its policy is stereotyping racism as a white problem directed solely at ethnic minority groups. This stereotyping of racism, racist groups and the members of racist group as a ‘whites only’ problem that impacts only upon ethnic minority staff is evidence of Direct Discrimination against whites and white staff. The failure to include in the policy a list of ethnic minority groups and organisations that are also defined as racist, and to provide either guidance or training under the policy to Prison Service staff or to collect figures in regard to the policy and its operations, are proof that the policy is based on a racist stereotyping of the white community. The Prison Service has been held to be racist against white staff in the past such as ROSE V HMP
2) In Chief Constable of Greater Manchester Police & Another v Hope [1999] ICR 338, EAT it was held that ‘relevant circumstances’ were matters that were raised with the applicant that would not have been applied in relation to an Asian male police sergeant - ‘but for’ his race he would not have been treated in such a way. The fact that there are no mono-racial White only organisations representing the interests of the indigenous White community in British society means that those White British people that join an legal ethno-specific organisation in the UK such as the BNP, are more likely to be prohibited from joining the Prison Service. The fact that the claimant in this case was required to disclose details of his political memberships, to declare his membership or non-membership of the listed groups under the policy, face the possibility of being refused an interview because of his membership of those groups and also suffer the refusal to offer an interview for employment are all examples of Direct racial discrimination against solely whites and the white community and white applicants. This is because of the failure of the HMPS to apply the policy equally against all racial groups, against all similar non-white racial based organisations and against applicants from ethnic minority racial groups. The fact is that an Asian or black candidate for employment stands a far better chance of getting to an interview in the HMPS as the legal mono-racial organisations they belong to are not recognised as racist, or listed racist groups, the HMPS.
3) Different treatment does not automatically indicate ‘less favourable treatment’ under the RRA but in this case the less favourable treatment was specifically a result in the difference in race between the applicant and the relevant comparators he provided and also the way those applications from mono-racial ethnic groups were treated by the HMP.
Owen & Briggs v James [1982] IRLR 502, CA 2. It is not necessary for the applicant to show that the racial factor was the sole reason for the treatment in question - it need only be an important factor in the decision. This is sufficient to make a finding of race discrimination
4) The respondents are not able to claim a defence under Section 32(3) RRA because they have failed to take such steps as are reasonably practicable to prevent racial discrimination occurring against the white British community, white members of white only racial groups and also white applicants for employment. This is proven by their failure to follow the duties under the Race Relations Act 2001 and 2003 and the associated internal HMPS duties to monitor the policy and its impact on white applicants. If those duties had been followed, and staff provided with training, clear guidelines as regards the scope of the policy and a list of groups that should also be banned, then a defence under Section 32(3) could be raised. The failure follow both the statutory duty under the RRA as per the policy and also the internal HMPS policy monitoring rules means no defence can be raised.
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30 > Facts of the development of the Policy ;
Before the policy was imposed the HMPS had a duty in law under the Race Relations Amendment Act to 2000 investigate the policy for its effect on the different racial communities, applicants for employment and staff and also how the policy would affect race relations both in society and within the HMPS itself. This was not done. The various duties placed on the HMPS under the following amended versions of the Race Relations Act 1976 was not done in relation to the policy ;
1) The Race Relations Amendment Act 2000 which placed a duty on the HMPS to promote good race relations and equality of opportunity
2) The Race Relations Act 1976 (Statutory Duties) Order 2001 which came into force on December 3rd 2001 and placed strict statutory duties on the HMP
3) The Race Relations Amendment Act 2003 which also placed a statutory duty on the HMPS to monitor the policy and its impact on race relations within the HMPS and also in relation to applicants for employment with the HMPS.
Race Relations (Amendment) Act 2000 Chapter 34 - continued
An Act to extend further the application of the Race Relations Act 1976 to the police and other public authorities; to amend the exemption under that Act for acts done for the purpose of safeguarding national security; and for connected purposes.
[30th November 2000]
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
Further extension of 1976 Act to police and other public authorities Discrimination by police and other public authorities. 1. After section 19A of the Race Relations Act 1976 (in this Act referred to as "the 1976 Act") there is inserted-

"Public authorities
Discrimination by public authorities. 19B. - (1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.
(2) In this section "public authority"-
(a) includes any person certain of whose functions are functions of a public nature
Specified authorities: general statutory duty. 2.
(1) For section 71 of the 1976 Act (local authorities: general statutory duty) there is substituted-
"Specified authorities: general statutory duty. 71. - (1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need-
 (a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups.
This was followed by ;
32 > Statutory Instrument 2001 No. 3458
The Race Relations Act 1976 (Statutory Duties) Order 2001
Made 23rd October 2001 Laid before Parliament 24th October 2001 Coming into force 3rd December 2001
SCHEDULE 1
Article 2
BODIES AND OTHER PERSONS REQUIRED TO PUBLISH RACE EQUALITY SCHEMES
A Minister of the Crown or government department.
Monitoring by employers
5. - (1) A person to which this article applies shall,
(a) before 31st May 2002, have in place arrangements for fulfilling, as soon as is reasonably practicable, its duties under paragraph (2); and
(b) fulfil those duties in accordance with such arrangements.
(2) It shall be the duty of such a person to monitor, by reference to the racial groups to which they belong,
(a) the numbers of -
(i) staff in post, and
(ii) applicants for employment, training and promotion, from each such group, and
(b) where that person has 150 or more full-time staff, the numbers of staff from each such group who -
(i) receive training;
(ii) benefit or suffer detriment as a result of its performance assessment procedures;
(iii) are involved in grievance procedures;
(iv) are the subject of disciplinary procedures; or
(v) cease employment with that person.
(3) Such a person shall publish annually the results of its monitoring under paragraph (2).
(4) Subject to paragraph (5), this article applies to a body or other person specified in Schedule 1A to the Race Relations Act[5].
This Order imposes certain duties on certain bodies and other persons who are subject to the general duty under section 71(1) of the Race Relations Act 1976 to have due regard, when exercising their functions, to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. The duties are imposed for the purpose of ensuring the better performance of the general duty. The Order imposes on a body or other person specified in Schedule 1 to the Order a duty to publish, by 31st May 2002, a Race Equality Scheme, that is a Scheme showing how it intends to fulfil the general duty and its duties under this Order. The Order imposes on an educational body referred to in Part I or II of Schedule 2 duties to prepare, by 31st May 2002, a statement of its race equality policy, to have arrangements in place for fulfilling duties to assess and monitor the impact of its policies on different racial groups, and to fulfil those duties in accordance with such arrangements. The Order imposes on a body referred to in Parts III to V of that Schedule a duty to have in place arrangements for fulfilling duties to monitor, by reference to racial groups, various aspects of education and employment at educational establishments, and to fulfil those duties in accordance with such arrangements. The Order also imposes on bodies and other persons specified in Schedule 1A to the 1976 Act, other than those specified in article 5(5) to the Order, to have in place, by 31st May 2002, arrangements for fulfilling duties to monitor, by reference to racial groups, various aspects of employment by those bodies, and to fulfil those duties in accordance with such arrangements.
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31 >
Not one of the statutory requirements of the RRA 2000,The Race Relations Act 1976 (Statutory Duties) Order 2001, the RRA amendment act 2003 and the HMPS Racial Equality Sheme 2005/2008 were followed by the HMPS in relation to the policy prior to it being put into place and nor have any of the above statutory requirements been followed since the policy was put in place
Since 2001 when the duty under the RRA 2000 to promote good race relations was imposed and the statutory duties under the RRA 1976 STATUTORY DUTY ORDER 2001 came into force on 3rd December 2001 and the duties on the HMPS under the Race Relations Amendment Act 2003 came into force the HMPS has been in breach of the Race Relations Duties, and their own internal monitoring rules and procedures under the Prison Service Impact Assessment requirements and rules for internal prison service policies and functions year after year as they have failed ;
A) to collect details of which HMP officers have refused an applicant employment under the policy since 2001.
B) to collect details regarding what legal grounds those HMPS employees asserted provided them with a right to refuse an applicant employment under the policy and thereby allowed them to lawfully discriminate under the policy against a potential applicant for employment within the HMP.
C) monitor and assess what criteria or evidence the HMP officer responsible for processing the application used to designate any group as a racist group in order to ensure that no abuse of their discretionary powers as per the policy had occurred.
D) monitor or assess whether the HMP officer who designated the group as racist and who denied the applicant the right to employment contacted the Resourcing Policy Unit for advice and confirmation that the group should have been designated as a racist group under the policy before they refused them employment and also that they had checked whether the individual should have been refused employment for being a member of the group under the policy by the HMP.
D) collect details of what criteria or evidence the HMP officer responsible for processing the application provided or used in order to assert a legal right that the group they had designated as racist actually came under the policy ( some racist groups may not come under the policy eg the Black Police Officers Association ).
E) collect documentation relating to reporting and collating information on how widespread the use of the policy is within the Prison Service and how many people have been refused employment under the policy.
F) collect documentation related to monitoring of the policy to ensure the discretionary powers to designate a group as racist and coming under the policy have not been abused by racists in order to advance a racist employment policy and deny individuals employment on the basis of their race.
G) collect documentation related to monitoring what racial groups the policy was being applied against to ensure that the HMP duties under the RRA are not being inadvertently used to create and impose a racist employment policy.
H) collect documentation related to what groups were being specified and designated as being racial groups in order to ensure the transparency and probity of the discretionary powers given to HMP officers under the policy and to ensure that groups and individuals were not being arbitrarily and classified in a racist way in some prisons as coming under the policy and not in other prisons.
I) collect documents monitoring how the policy is affecting the employment and retention of various racial groups within the Prison Service.
J) collect documents monitoring how the policy is affecting recruitment of ethnic minority staff and also white applicants for employment.
K) collect documents relating to requests for an enhanced security check relating to the policy.
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32 >
Race Relations Amendment Act 2000 (RRAA) made racial discrimination in public functions unlawful. The Act obliges public authorities like the Prison Service to promote race equality in the way they act towards their staff, develop policies and provide their services. All public authorities must produce a Race Equality Scheme (RES) setting out their action plans with meaningful and measurable targets. The policy was not featured in any way as part of this scheme, nor in its application nor were its effects monitored. The Prison Service has failed to abide by its public duty under the RRA 2001 statutory duty order and the RRA 2003 which came into force on 19th July 2003 to have investigated the impact of the policy on the white community and white applicants in its Race Equality Scheme/ Action Plan.
The RRA 2003 under Schedule 1A lists the Prison Service as one of the public bodies with a Specific Statutory duty under the act. The act applies also to employment practices in relation to applicants and potential employees. The duty also states that the employer must have in place a monitoring program for employment statistics related to racial equality and an outcomes of race equality impact assessments related to employment issues. The Race Equality Scheme / Action Plan requires that ;
1) employers such as the Prison Service list ALL functions and policies and assesses the impact of those functions and policies on racial groups ( which they have not done in relation to the policy as per the BNP and the white community which are a recognised racial group)
2) it set out arrangements for assessing and consulting on the likely impact of their proposed policies on the promotion of race equality ( which they have not done )
3) it sets out arrangements for training staff in connection with the general duty to promote race equality and any specific duty (which they have not done). There has been no training of Prison Service staff as regards the operation of the policy against so called racist groups. There has been no training for Prison Service staff in relation to its application as a policy as per being applied in relation to ethnics groups that are not white. There has been no training of any Prison Service staff as regards the monitoring of the policy in operation since its inception nor in relation to the other specific duties under act.
4) it monitors the ethnic origin of staff and applicants for jobs, promotion and training. As the Prison Service employs more than 150 employees this duty extends too monitoring grievances, disciplinary action, performance appraisal, training and dismissals and reasons for leaving and all functions relating to applications, employment and the racial nature of staff. The Prison Service has also not done any of these requirements under their statutory duty under the Race Equality Scheme / Action Plan as per white applicants, white applicants who are members of white only groups and white staff and nor in relation to the operation of the policy relating to non-white applicants, non-white organisations and non-white staff. As the policy only applies to white groups then the duty to monitor its impact adheres specifically to the white community and white individuals, as well as its potential impact on ethnic minority groups in the HMPS, such as its effect on reducing racism within the HMPS against non-white staff.
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33 >
Under the duty on the Public Authorities under the RRA 2003 the act requires the Prison Service to investigate all possible forms of racism against white community, white applicants and white staff as per the operation of the policy since it was initiated. They are also required to put in place procedures and policies for their staff to monitor the policy in the work place as per it being used in a racist manner. The failure to comply with the duties under the act RRA 2003 and also investigate and monitor those duties as regards whites applicants, white members of white only organisations and the white community is further evidence of the institutional racism within the Prison Service directed at whites and the white community. Whilst the Prison Service follows its duty under the act and monitors the impact of all its policies and procedures as per all other ethnic groups, they do not do so for whites. All these Decisions made by the Prison Service were in fact discriminatory, even though such discrimination may not have been actually in the minds of the people that making those decisions. This is recognised in the Nagarajan case in the House of Lords as per unconscious racism which states that you do not have to show an intention or motive to victimise. .
This is in relation to the Prisons Services failure to also abide by its public duty under the RRA 2003 which came into force on 19th July 2003 to have investigated the impact of the policy on the white community in its Race Equality Scheme/ Action Plan as required by 31st May 2002. The RRA 2003 under Schedule 1A lists the Prison Service as one of the public bodies with a Specific Statutory duty under the act. The act applies also to employment practices in relation to applicants and potential employees.
The duty also states that the employer must have in place a monitoring program for employment statistics related to racial equality and an outcomes of race equality impact assessments related to employment issues.
The evidence of David Woolger at Para 6 confirms that the first, and only, impact assessment of the policy as required under the RRA 2OOO and RRA 2003 will be commenced in 2008.
The evidence of David Woolger at Para 6 also states that though the HMPS should have been undertaking impact assessment reports on the policy since 2005 when they instituted the Race Equality Scheme 2005/ 2008, this has not occurred.
This is proof that the policy has been in breach of the RRA 2000 and RRA 2003 since 2001 when it was imposed and also that the Prison Service has been in breach of its own Race Equality Scheme since 2005 and also their yearly Prison Service Policy Assessment programmes since 2001.
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34 > ECHR and Human Rights Act 1998
The Prison Service is a public body as defined under Human Rights Act 1998 which makes it unlawful for a public body such as the HMPS to act in a way that is incompatible with the rights and freedoms guaranteed under the ECHR and ECHR case law.
That decision to ban the BNP was not permitted under the law re ECHR and ECJ
CASE OF UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY
(133/1996/752/951)
JUDGMENT
STRASBOURG
30 January 1998
The Court’s assessment
24. The Court considers that the wording of Article 11 provides an initial indication as to whether political parties may rely on that provision. It notes that although Article 11 refers to “freedom of association with others, including the right to form … trade unions …”, the conjunction “including” clearly shows that trade unions are but one example among others of the form in which the right to freedom of association may be exercised. It is therefore not possible to conclude, as the Government did, that by referring to trade unions – for reasons related mainly to issues that were current at the time – those who drafted the Convention intended to exclude political parties from the scope of Article 11.
25. However, even more persuasive than the wording of Article 11, in the Court’s view, is the fact that political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system (see paragraph 45 below), there can be no doubt that political parties come within the scope of Article 11.
27. The Court notes on the other hand that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions. As the Court has said in the past, while it is in principle open to the national authorities to take such action as they consider necessary to respect the rule of law or to give effect to constitutional rights, they must do so in a manner which is compatible with their obligations under the Convention and subject to review by the Convention institutions (see the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 29, § 69).
28. The Preamble to the Convention refers to the “common heritage of political traditions, ideals, freedom and the rule of law” (see paragraph 45 below), of which national constitutions are in fact often the first embodiment. Through its system of collective enforcement of the rights it establishes (see the Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310, p. 26, § 70), the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level, but never limits it (Article 60 of the Convention).
29. The Court points out, moreover, that Article 1 requires the States Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. That provision, together with Articles 14, 2 to 13 and 63, demarcates the scope of the Convention ratione personae, materiae and loci (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 238). It makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention. It is, therefore, with respect to their “jurisdiction” as a whole – which is often exercised in the first place through the Constitution – that the States Parties are called on to show compliance with the Convention.
30. The political and institutional organisation of the member States must accordingly respect the rights and principles enshrined in the Convention. It matters little in this context whether the provisions in issue are constitutional (see, for example, the Gitonas and Others v. Greece judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV) or merely legislative (see, for example, the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113). From the moment that such provisions are the means by which the State concerned exercises its jurisdiction, they are subject to review under the Convention.
(c) “Necessary in a democratic society”
1. General principles
42. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11 (see, among other authorities, the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 30, § 64).
43. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy (see paragraph 25 above).
As the Court has said many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, the Vogt judgment cited above, p. 25, § 52). The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention.
44. In the Informationsverein Lentia and Others v. Austria judgment the Court described the State as the ultimate guarantor of the principle of pluralism (see the judgment of 24 November 1993, Series A no. 276, p. 16, § 38). In the political sphere that responsibility means that the State is under the obligation, among others, to hold, in accordance with Article 3 of Protocol No. 1, free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Such expression is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country’s population. By relaying this range of opinion, not only within political institutions but also – with the help of the media – at all levels of social life, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, § 42, and the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 23, § 43).
45. Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p. 27, § 75). That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights (see the Klass and Others judgment cited above, p. 28, § 59). The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, § 88); it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 27, §
53, and the Soering judgment cited above, p. 34, § 87).
In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is “necessary in a democratic society”. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from “democratic society”. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.
The Court has identified certain provisions of the Convention as being characteristic of democratic society. Thus in its very first judgment it held that in a “democratic society within the meaning of the Preamble and the other clauses of the Convention”, proceedings before the judiciary should be conducted in the presence of the parties and in public and that that fundamental principle was upheld in Article 6 of the Convention (see the Lawless v. Ireland judgment of 14 November 1960 (preliminary objections and questions of procedure), Series A no. 1, p. 13). In a field closer to the one concerned in the instant case, the Court has on many occasions stated, for example, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment (see, among other authorities, the Vogt judgment cited above, p. 25, § 52), whereas in the Mathieu-Mohin and Clerfayt judgment cited above it noted the prime importance of Article 3 of Protocol No. 1, which enshrines a characteristic principle of an effective political democracy (p. 22, § 47).
46. Consequently, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts. The Court has already held that such scrutiny was necessary in a case concerning a Member of Parliament who had been convicted of proffering insults (see the Castells judgment cited above, pp. 22–23, § 42); such scrutiny is all the more necessary where an entire political party is dissolved and its leaders banned from carrying on any similar activity in the future.
47. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 31).
57. The Court considers one of the principal characteristics of democracy to be the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned. To judge by its programme, that was indeed the TBKP’s objective in this area. That distinguishes the present case from those referred to by the Government (see paragraph 49 above). “
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35 >
Further to this case the rights to freedom of expression, freedom of assembly and privacy are among the rights that, only under certain limited conditions, may be restricted. The precise conditions under which these rights may be restricted are broadly similar for each.
Article 10(2) of the European Convention on Human Rights, which guarantees the right to freedom of expression and the substance of which is given domestic effect through the provisions of the Human Rights Act 1998, can be used as a template to explore the conditions for restrictions on all three rights:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the
judiciary.
This translates to a three-part test, according to which interferences with freedom of expression are legitimate only if they (a) are prescribed by law; (b) pursue a legitimate aim; and (c) are “necessary in a democratic society”.
Each of these elements has specific legal meaning. The first requirement will be fulfilled only where the restriction is ‘prescribed by law’. This implies not only that the restriction is based in law, but also that the relevant law meets certain standards of clarity and accessibility. The European Court of Human Rights has elaborated on the requirement of “prescribed by law” under the ECHR:
[A] norm cannot be regarded as a “law” unless it is formulated with sufficient precision to
enable the citizen to regulate his conduct: he must be able – if need be with appropriate
advice – to foresee, to a degree that is reasonable in the circumstances, the consequences
which a given situation may entail. “
The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para.49. That includes the Redfearn Test where the law has to be applied to all ethnic groups, as this Redfearn Test is the basis of a fair, logical and legal requirement for all communities.
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36 >
The second requirement relates to the legitimate aims listed in Article 10(2). To satisfy this part of the test, a restriction must truly pursue one of the legitimate aims; it is illegitimate to invoke a legitimate aim as an excuse to pursue a political or other illegitimate agenda.
( Article 18, ECHR. See also Benjamin and Others v. Minister of Information and Broadcasting, 14 February 2(1), Privy Council Appeal No. 2 of 1999, (Judicial Committee of the Privy Council).
The reasons given by the State to justify the limitation must be “relevant and sufficient”; the State should use the least restrictive means available and the limitation must be proportionate to the aim pursued. See, for example, Lingens v. Austria, 8 July 1986, Application No. 9815/82, paras. 39-40 (European Court of
Human Rights )
Article 17 – Prohibition of abuse of rights1
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Article 18 – Limitation on use of restrictions on rights1
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
Article 17 Provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. This addresses instances where States seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights. (For example where an individual issues a death threat). It can only be applied in the field of criminal law and under strict circumstances.
Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre-trial detention as a means of intimidation of a person under a false pretext is therefore a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18.
Article 57 – Reservations1
Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article.
Any reservation made under this article shall contain a brief statement of the law concerned.
No such reservation as regarding the removal of rights of individuals to join political parties as they wish has been lodged by the UK govt and the policy banning the BNP is therefore unlawful. And nor has a derogation from the convention as under Article 15 been lodged.
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39 > European Union rights and the Rights of British Citizens
The Race Relations Amendment Act 2003 is derived from a European Directive which is derived from the European Union and therefore fundamental rights and freedoms guaranteed in the EU treaties have to be protected ;
These Regulations, which are made under section 2(2)(a) and (b) of the European Communities Act 1972 and come into force on 19th July 2003, implement (in Great Britain) Council Directive 2000/43 EC of 29th June 2000 ("the Directive") and include provision for matters arising out of or relating to such implementation. The Directive is concerned with the principle of equal treatment between persons, irrespective of racial or ethnic origin, in the areas of employment (and related matters), social protection, social advantage, education and access to and supply of, goods and services which are available to the public, including housing.
The supremacy of European Community Law ;
The Treaty of Amsterdam amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related acts, commonly known as the Amsterdam Treaty, was signed on October 2, 1997, and entered into force on May 1, 1999; it made substantial changes to the Treaty on European Union, which had been signed at Maastricht in 1992.
The Treaty of Amsterdam clarifies Article 6 (ex Article F) of the Treaty on European Union by stating unequivocally that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
It also amends the preamble to the EU Treaty, confirming the Member States' attachment to fundamental social rights as defined in the European Social Charter of 1961 and the Community Charter of the Fundamental Social Rights of Workers of 1989.
This is stated on page C/325/9 in the preamble of the Amsterdam Treaty iself.
CONFIRMING their attachment to the principles of liberty, democracy and respect for human rights and
fundamental freedoms and of the rule of law,
CONFIRMING their attachment to fundamental social rights as defined in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers,
============================================================
Text and Protocols of the European Social Charter (Turin, 18.X.1961)
Preamble ;
"The governments signatory hereto, being members of the Council of Europe,
Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms;
Considering that in the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4th November 1950, and the Protocol thereto signed at Paris on 20th March 1952, the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified;
Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin.
=============================================================
The European Social Charter 1996 is the revised version of the original version of the European Social Charter of 1961 which states ;
European Social Charter 1961 ;
Considering that in the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified;
Part V
Article E – Non-discrimination
The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.
======================================================
European Social Charter (revised)
Strasbourg , 3.V.1996
Preamble
The governments signatory hereto, being members of the Council of Europe,
Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms;
Considering that in the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified;
Considering that in the European Social Charter opened for signature in Turin on 18 October 1961 and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the social rights specified therein in order to improve their standard of living and their social well-being;
Recalling that the Ministerial Conference on Human Rights held in Rome on 5 November 1990 stressed the need, on the one hand, to preserve the indivisible nature of all human rights, be they civil, political, economic, social or cultural and, on the other hand, to give the European Social Charter fresh impetus;
Resolved, as was decided during the Ministerial Conference held in Turin on 21 and 22 October 1991, to update and adapt the substantive contents of the Charter in order to take account in particular of the fundamental social changes which have occurred since the text was adopted;
Recognising the advantage of embodying in a Revised Charter, designed progressively to take the place of the European Social Charter, the rights guaranteed by the Charter as amended, the rights guaranteed by the Additional Protocol of 1988 and to add new rights,
Part I
The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised:
1. Everyone shall have the opportunity to earn his living in an occupation freely entered upon.
5. All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests.
Part II
The Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs.
2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon
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37 > ECHR ISSUES.
The European Social Charter 1996 also states ;
Considering that in the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified.
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38> Work Place Issues
1) The RRA 2003 section 1 A ( c ) states that the policy must be a proportionate means of achieving a legitimate aim. In both these provisos the policy is at fault. The extension of the remit of the employer / employee relationship to include an interest in controlling an individuals membership of a political party outside the workplace is not a legitimate aim of the RRA act, nor is such an extension of the right of a public body to interfere in an individuals private life authorised by the ECHR, as to do so is prohibited under case law and also ECHR rulings. Neither is it proportionate. An individual is already covered by the criminal law for their actions outside work which can form the basis of a dismissal from the work place and to penalise someone for something which is protected as the highest type or organisation under Article 11 of the ECHR is a clear breach of the ECHR itself.
2) The Race Relations Amendment Act 2003 duty only applies in the working place, as stated in the Statute itself and according to Golden Rule does not allow organisations to ban individuals for private political beliefs outside the Work Place. To extend the parameters of the RRA 2003 law is not permitted without express statutory authority - therefore to say Race Relations Amendment Act authorises the policy is false to ban the BNP is false. Such a contention is also incorrect as the RRA 2003 was not in force when the policy was initiated - policy initiated in August 2001.
3) The Race Relations Amendment Act 2003, states that public bodies have duty to implement race equality in all aspects of EMPLOYMENT matters. Act also establishes specific duties on PUBLIC AUTHORITIES as regards the operation of those bodies. The employer and the employee are liable for their acts of discrimination only as regarding employment under S.32 of the RRA 1976. This section makes the employer vicariously liable for the acts of employees in the workplace or during work activities - it is the work relationship that is the dividing line of liability at work, and also the dividing line in the right of a public body to interefere with an individuals right o join a political party or have a private life.
4) As long as the activity outside work if lawful, and the BNP is a lawful registered party, then political membership is protected under the ECHR.
In the cases of HM Prison Service V Davis (EAT 29.3.00 Case No.1294/98) and Bennett V Essex County Council & ors EAT 2.11.99) they have established the boundaries of vicarious liability and defined activity “ within the course of employment “. In HM Prison Service & Ors V Davis (EAT 29.3.00 Case No. 1294/98) the EAT said that the fact that an employer can complain about an employees activities outside of work, that does not make the employees activity outside work within the course of employment. An employer has no vicarious liability or duty of care as regards an employees activities outside work, therefore an employer has no right in law to interfere with an employees rights outside their employment if what they are doing is legal, and protected under the ECHR and HRA 1998. If the employee takes drugs outside work then it is the fact that the buying and possession of drugs are a crime are still present in the bloodstream and affecting his ability to do the job safely whilst in the workplace that establishes an interest for the employer in the actions of the employee. The employee can be sacked as they committed a criminal offence and also committed gross misconduct as per Health and Safety at work laws. This logical differential establishes the principle recognised in English law that as long as what an employee does outside work is legal, such as being a member of the BNP as the BNP are not a proscribed organisation (as listed by Home Secretary) and are a legitimate registered party with the Electoral Commission, then the employer has no right in law to assert any right to prohibit them from being a member of that organisation outside the workplace.
5) The rule in Burton and Rhule V De Vere Hotels LTD EAT (1996) IRLR 596 states that the employers liability as per its employees is that it has a duty to protect a person being harassed when at work and to stop another employee harassing them whilst at work. The employer cannot be held liable for the actions of an employee outside work but it has a duty in relation to vicarious liability for employees at work and also their victims at work. The criminal law eg Public Order Act 1986, covers racist crimes outside the scope of employment law. If the individual is arrested for a racist crime outside the workplace and convicted for that outside his employment place of work then this conviction would establish grounds for dismissal from work. If the employee commits a racist act at work then this would also be grounds for dismissal. If the individual is a member of a banned organisation as per the proscribed list then this would provide legal grounds for refusing them employment as they would be guilty of a criminal offence and if they joined any illegal organisation then they could be dismissed from employment as being guilty of a criminal offence. If the individual is guilty of any criminal racist offence in the past then this would also be grounds for refusal for employment or for dismissal if found out.
6) Even those convicted of crimes have the Rehabilitation of Offenders Act 1974 to allow such offences to be discharged after a certain period of time. For a public authority like the Prison Service to enact a rule that places a permanent ban on an individual joining them for their membership of a political party is Stalinist and unlawful under the HRA 1998 and ECHR. It is anomalous that someone convicted and sentenced for a criminal offence of racism can join the Prison Service after their conviction is spent as the policy does not stop them joining the service. Nor are racists in other violent and extremist organisations banned from joining. Nor are racists who have never joined a political party.
7) The fact that the Prison Service is a public authority under the HRA 1998 SECTION 6 AS A PUBLIC AUTHORITY means the Prison Service has a duty to give effect to applicants and individuals rights under Article 8 right to privacy , right to freedom of thought 9, freedom of expression 10, right to organise into political parties and stand in elections article 11, and right not to suffer political discrimination under 14.
8) At Paragraph 15 of the Employment Appeal Tribunal verdict the Honourable Mr. Justice Elias (Appeal no.UKEAT/0457/06/DM) makes reference to the issue that “ a blanket rule that precludes someone from being a member of a racist organisation, even for example where they keep their membership a secret or well away from the working environment at all, might not necessarily be justified at least simply on the basis that they belong to a racist group.
For example it may be necessary in those circumstances for the prison authorities to put forward reasons why a mere membership of itself, even if kept well away from the working environment, would still create difficulties for the service so as to justify a blanket policy. “
This is relation to the fact that a ’ legal racist group’ such as the BNP, which is a protected political party, whose members keep their politics out of the workplace cannot be the victim of a ban such as the one under the HMPS policy and nor can its members.
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39 >
Discrimination (Employment and Occupation) Convention
Convention (No. 111) concerning Discrimination in respect of Employment and Occupation
Adopted on 25 June 1958 by the General Conference of the International Labour Organisation
at its forty-second session
entry into force 15 June 1960, in accordance with Article 8
Article 1
1. For the purpose of this Convention the term "discrimination" includes:
(a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
(b) Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.
3. For the purpose of this Convention the terms "employment" and "occupation" include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
Article 2
Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
Article 3
Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice:
(a) To seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy;
(b) To enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy;
(c) To repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy;
(d) To pursue the policy in respect of employment under the direct control of a national authority;
(e) To ensure observance of the policy in activities of vocational guidance, vocational training and placement services under the direction of a national authority;
(f) To indicate in its annual reports on the application of the Convention the action taken in pursuance of the policy and the results secured by such action.
Two things to note:
ReplyDeleteI hope you had the grammar and spelling checked before it was sent in.
Secondly, Searchlight are on the prison service board as consultants so there is no chance of this letter proceeding any further than the paper shredder and the files of Gerry Gable and associates.
1) Dyslexia is my trademark, why change it.
ReplyDelete2) If I told you what has been happening, you would not be surprised. This country is screwed.