1 Overview

This White Paper consists of a total of 23 chapters. Some basic concepts are discussed in chapter 3. Chapters 4-9 mainly describe certain features of the actual and legal situation in Norway at present and Norway’s international obligations. A description is also given of the legal situation as regards ethnic discrimination in the EU as well as in a selection of other countries.

The commission’s detailed discussions, evaluations and proposals are presented in chapters 10-20. Here the commission discusses how the International Convention on the Elimination of all forms of Racial Discrimination can be implemented in Norwegian law. It evaluates the protection in criminal law against racist acts and speech, and proposes a new Act Against Ethnic Discrimination. In these chapters, the commission evaluates the enforcement of the Act as well as sanctions for violations of the Act. The commission also looks into the need for special measures to promote ethnic equality and it discusses the future role of the Centre for Combating Ethnic Discrimination.

In chapters 21-22, the commission provides explanatory comments to the draft provisions and gives an overview of the administrative and economic consequences. Chapter 23 contains the commission‘s draft legislation.

2 Definition of key concepts

Chap. 3, Some key concepts.

The commission defines the concepts of differential treatment, which the commission regards as a comprehensive and neutral term that covers all forms of unequal treatment, and of discrimination, which in this context means unjustifiable differential treatment and which is not warranted as affirmative action. The concept of discrimination is divided into direct and indirect discrimination. Direct discrimination is defined as an act or omission which treats a person less favourably than others in a comparable situation because of the ethnicity of the person in question. Intent to discriminate is not a requirement. Indirect discrimination is defined as an apparently neutral act, provision, etc. which unjustifiably puts persons of a particular ethnicity at a disadvantage compared with other persons. Harassment on the basis of ethnicity is regarded as a special form of discrimination.

The term ethnicity is closely related to culture and identity. It is not possible to establish the precise scope of the term, partly because ethnicity contains a subjective element and partly because it allows for changes over a period of time. The concept of ethnicity is broad and well suited for use in connection with legislation intended to protect against ethnic discrimination. In some cases, nationality may be included within the concept of ethnicity, but nationality in the sense of citizenship falls outside of the concept. The commission wishes to avoid using the concept of “race” because there is no scientific basis for dividing humanity into different “races”, and the concept has negative connotations. The concept of racism, however, expresses something real and will be used in accordance with the normal understanding of the term.

A ban against direct and indirect ethnic discrimination implies that everyone should have equal rights. However, special arrangements may be necessary to ensure equality of opportunities. Ethnic equality can be regarded as the primary goal, although it may be difficult to give a precise definition of what this entails. The commission does not use the term ethnic equality in the text of the act.

The concept of structural discrimination is understood by the commission to refer to structures of society that are built in such a way that certain discriminatory effects are inherent in the system, regardless of whether this results in discriminatory acts or effects seen on an individual level. This concept will not be employed in this White Paper, but the legislation that is proposed will have the effect of counteracting structural discrimination.

3 The situation in Norway at present

Chap. 4, Information about ethnic discrimination in Norway.

This chapter begins with the situation for ethnic minorities in Norway at present. The commission has not tried to make a broader survey of this situation, but confines itself to giving a number of examples of problems that may be perceived as discrimination. It starts with a number of surveys and reports and other information that is available to the public. In relation to some of these problems, judicial decisions are also cited. In addition, the chapter refers to information that has come out in the commission’s meetings with non-governmental organisations that are working in this field and in meetings with other bodies, such as the Parliamentary Ombudsman for Public Administration, the Director General of Public Prosecutions and the Saami Assembly. The commission has not had the opportunity to launch any independent studies or to make any independent checks of the information that has been gathered, nor does the commission take any stand as to whether all of the problems and individual cases that are presented can be regarded as discrimination according to the definition in the proposed Act.

The commission provides an overview of the groups that are particularly subject to ethnic discrimination. This includes persons of immigrant origin, national minorities (Jews, Kvens, Roms/Gypsies, the Romani/travellers, and Forest Finns) and the Saami. The commission gives examples of problems in employment and in some parts of public administration and government services, with special emphasis on the police and prosecuting authorities, the judicial system and the immigration authorities. It also refers to some examples from the education system, the housing market, and access to goods and services, with special emphasis on discrimination regarding access to bars, restaurants, etc. Finally, the commission takes a look at some examples of racist crime and circumstances relating to right-wing extremist groups.

Chap. 5, Description of some main points in current Norwegian law.

The commission begins with a discussion of section 110 c of the Norwegian constitution securing human rights, and gives a brief description of the Human Rights Act of 1999. Next, it takes up the special regulation that aims at protecting the Saami’s rights. This is followed by a discussion of the main points in the current protection in civil law against ethnic discrimination. The only civil law provision that explicitly prohibits ethnic discrimination is found in section 55 A of the Work Environment Act with regard to the hiring of employees. In addition, protection against ethnic discrimination is built into a number of general rules, such as the Work Environment Act’s rules which protect against unfair dismissal and against harassment, and requirements of fairness in decisions under the housing legislation. Moreover, work is underway to introduce new bans against ethnic discrimination in the housing sector. Administrative law principles pertaining to fairness and equal treatment also provide a general protection against ethnic discrimination in public administration.

In Norwegian criminal law the existing protection against ethnic discrimination consists of several provisions. Section 135 a of the Penal Code pertains to racist speech made publicly or otherwise disseminated among the public. Section 349 a of the Penal Code makes it a punishable offence to refuse a person goods or services. on the same conditions that apply to others, if the refusal is based on the person’s religion, skin colour, ethnic origin, etc. in commercial activities. In addition, the Penal Code includes rules pertaining to enhancement of punishment for racially motivated assault, threats and coercion, and for racially motivated vandalism, cf. sections 232, 292, 227 and 222 of the Penal Code. Furthermore, the general rules pertaining to defamation could in principle be employed against offences committed on grounds of ethnicity. The commission also refers to a provision in section 330 of the Penal Code pertaining to the establishment of or participation in certain types of associations.

4 International and foreign rules

Chap. 6, International obligations.

This chapter gives an overview of the relevant international instruments to which Norway is bound, with the main emphasis on the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), which was ratified by Norway in 1970. The commission discusses the convention’s definition of racial discrimination and the requirements upon states parties relating to bans and other measures against racial discrimination. Several of the key provisions of the convention are found in Article 4, where, among other things, states are required to declare illegal and ban any organisations that promote or incite racial discrimination. This chapter also gives an account of procedural rules and the activities of the UN’s Committee on the Elimination of Racial Discrimination (CERD), and of some of this committee’s comments on the Norwegian reports about how the convention has been followed up in Norway.

This chapter also discusses some key non-discrimination provisions in other UN conventions: first and foremost the International Covenant on Civil and Political Rights, which has been incorporated into Norwegian legislation by the Human Rights Act of 1999. It also cites the International Covenant on Economic, Social and Cultural Rights, also incorporated by the Human Rights Act, and certain other relevant UN conventions.

Furthermore the commission discusses obligations under the Council of Europe: first and foremost a review of non-discrimination provisions in the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, which was also incorporated into Norwegian law by the Human Rights Act of 1999. The Council of Europe’s Framework Convention for the Protection of National Minorities is also referred to, and there are brief discussions of certain other conventions that also contain bans against discrimination. Finally there is a discussion of the International Labour Organisation (ILO), which provides protection to minorities through conventions and recommendations. There is also a brief discussion of ILO Convention no. 111 concerning Discrimination in Respect of Employment and Occupation and ILO Convention no. 169 concerning Indigenous and Tribal Peoples in Independent Countries.

Chap. 7, The relationship between international obligations and Norwegian law.

The commission presents a discussion of the legal theory regarding the status of public international law in Norwegian law. The status of human rights in Norwegian law is given special attention. Starting with the Human Rights Act of 1999, which incorporated three international conventions, a more detailed discussion of the status of these conventions in Norwegian law is presented, with an analysis of relevant case law. In addition, special attention is given to the status of conventions that have not been incorporated into Norwegian law.

Chap. 8, Protection against ethnic discrimination in the EU.

This chapter gives an account of the rules pertaining to non-discrimination and equal treatment in the European Union. Through the EEA agreement, Norway is bound to comply with many of the EU regulations. Irrespective of this, the development of regulations against discrimination in the EU is important, both because Norway has a legal tradition that is very similar to that of a number of the EU Member States. and because of Norway’s co-operation with EU countries, both through the Council of Europe and the UN system. On the basis of the Amsterdam treaty of 1997, which, among other things, introduced new provisions relating to human rights and non-discrimination, a Council Directive was issued on 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The commission undertakes a closer review of this directive and the requirements that derive from the individual provisions. As a guiding rule, the commission believes that there is no reason for the level of protection against ethnic discrimination in Norway to be any lower than it is in the EU. The commission evaluates the extent to which existing Norwegian legislation complies with the directive’s requirements, or would comply with it in light of the commission’s proposals for new legislation. The commission also gives a brief account of other measures in the EU, such as the establishment of The European Monitoring Centre, the Community Action Programme to combat discrimination 2001-2006, and the EU Charter of Fundamental Rights from 2000.

Chap. 9, Foreign law.

The commission reviews some of the main features of the legal situation as regards ethnic discrimination in selected countries. Constitutional protection against ethnic discrimination in these countries is mentioned. Reference is also made to the main regulations in both civil law and criminal law and to the enforcement system. Relevant studies that aim to implement changes are also referred to, especially in the EU countries, which must adapt their legislation to comply with the EU directive of 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

Denmarkdoes not have any general constitutional protection against ethnic discrimination. The protection in civil law derives from a general administrative law principle of equality in the public sector, and otherwise through particular laws for the employment sector. Rules under criminal law punish racist speech, etc. and ethnic discrimination in connection with access to goods and services in commercial or public activities. Cases in both criminal and civil law are enforced by the ordinary courts. A special board, the Board for Ethnic Equality, works in various ways to oppose ethnic discrimination, but does not have the competence to make decisions in individual cases.

Finland has a general constitutional provision on non-discrimination. Bans against discrimination on both ethnic and other grounds have also been laid down in a general Act relating to employment contracts and in several other acts that apply to particular aspects of working life. The Penal Code punishes virulent campaigns against ethnic groups and discrimination in commercial activities, etc. It also includes a general provision pertaining to punishment for discrimination in the employment sector. The Minority Ombudsman works on a broad basis to prevent ethnic discrimination and improve the status, rights, etc. of minorities. The Advisory Board for Ethnic Relations functions as an expert body on matters pertaining to racism and ethnic discrimination.

Swedenhas a general provision in the Swedish Constitution that provides protection against ethnic discrimination. Protection in civil law also derives from the incorporation into Swedish law of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and through a specific law regarding employment. This Act is enforced by the Ombudsman against Ethnic Discrimination and the Board against Discrimination. The Penal Code punishes “unlawful discrimination” in commercial activities, etc. as well as hate speech and virulent campaigns against ethnic groups.

Canada has comprehensive legislation at both the federal and provincial levels. The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution and guarantees all inhabitants the right to equal treatment. The commission also makes special reference to the federal Human Rights Act, which has detailed rules prohibiting ethnic discrimination, and to corresponding legislation in the province of Ontario. Special commissions have been established to enforce these Acts. The Penal Code has a special ban against racist speech.

The Netherlandshas a constitutional principle of non-discrimination. Protection in civil law against discrimination also derives from a general Act prohibiting discrimination on various grounds, including ethnicity. A special commission has been established to enforce this Act. The criminal legislation includes a number of provisions with bans against racist speech, discrimination in commercial activities, etc.

Great Britain has comprehensive and detailed protection in civil law through the Race Relations Act. A special commission has the task of both enforcing the Act and working in other ways to promote ethnic equality. The criminal legislation covers racist speech and acts such as racially motivated violence and harassment. In 1999, a comprehensive action plan was approved for the work of the police in this field.

5 Incorporation of the International Convention on the Elimination of all forms of Racial Discrimination

Chap. 10, Implementing of the International Convention on the Elimination of all forms of Racial Discrimination in Norwegian law.

The commission includes a survey of various ways of implementing international conventions in Norwegian law. An account is given of incorporation, partial monism or sector monism, transformation and ascertainment of normative harmony (or passive transformation).The commission discusses the best way to implement the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) and assesses whether ICERD is suitable for transformation or incorporation. The commission believes it is impractical to submit proposals for a complete transformation of ICERD, i.e. a complete revision of all of the provisions in the convention to Norwegian statutory provisions. Nor is the commission in favour of a partial incorporation, i.e. to provide rules of law that specify which of the provisions in the convention shall apply directly as Norwegian law. The ICERD is specifically evaluated with a view to a possible incorporation of the whole convention into Norwegian law. One condition for choosing this solution is that it must not result in an ambiguous or overly complex law due to conflicting rules between existing Norwegian law and the provisions of the convention. The commission’s survey concludes that such conflicts are not likely to arise. The problem is rather that the convention is so general that an incorporation would not be sufficient to resolve the existing problems of ethnic discrimination. That is to say that there would also be a need for the legislative measures that the commission proposes. The commission also points out a special problem relating to the convention’s requirement that states ban organisations that promote and incite racial discrimination. The UN Committee on the Elimination of Racial Discrimination has criticised Norway on several occasions for not having followed up on this point. The commission assumes that the requirement in ICERD will be met by its proposal for a special provision in the new Act prohibiting organised racist activities. The commission recommends that ICERD be incorporated into Norwegian law through an addition to the Human Rights Act no. 30 of 21 May 1999.

6 Protection against ethnic discrimination and measures to promote ethnic equality – the commission’s evaluations and proposals

Chap. 11, Protection in criminal law against racist speech and acts.

This chapter contains a discussion on racially discriminatory speech including a survey of Norway’s international obligations with regard to such speech, as well as a discussion of current Norwegian law and an evaluation of the extent to which the laws comply with Norway’s international obligations. Furthermore, there is an evaluation of the extent to which the proposal of a new section 100 in the Norwegian Constitution by the Commission on Freedom of Expression would entail changes in current law, and whether this proposal is compatible with Norway’s international obligations. The survey concludes that section 135 a of the Penal Code on racist speech, as interpreted by the Norwegian Supreme Court, lies with­in the Norwegian authorities’ margin of appreciation according to international law. It would also be possible to extend the provision’s scope without curtailing freedom of speech. At the same time, it would also be possible to amend the provision in accordance with the proposal of the Commission on Freedom of Expression, without violating Norway’s obligations to forbid racially discriminatory speech. Adoption of the proposal of the Commission on Freedom of Expression would hardly entail any significant changes in the interpretation of section 135 a of the Penal Code. At the same time, an extension of section 135 a, so as to promote more extensive opportunities to punish racist speech could possibly be difficult to reconcile with the proposed new constitutional provision, depending on the scope of such provisions.

The commission discusses section 135 a of the Penal Code, and is of the opinion that it ought to be made more effective through certain amendments. The commission proposes that the required degree of fault be changed from the general criminal law requirement of intent to “intent or gross negligence”. The commission also proposes a certain extension of the scope of application of section 135 a. The current requirement is that the speech or expression be made publicly. The commission proposes that this requirement be eliminated so that it would be sufficient that the statement or message has been conveyed in the vicinity of a lower number of people. It is also proposed that the requirement that the offender subject someone to hate, persecution or abuse be amended to require that the offender has promoted hate, etc., thereby lowering the threshold for applicability.

It is also proposed that the term “profession of faith” (trosbekjennelse)be replaced with “religion” (religion), and that the term “race” be removed from the Act. These changes are not intended to involve any substantive changes.

The commission does not propose any substantive change to section 349 a of the Penal Code pertaining to discrimination in access to goods and services. However, the concept of “profession of faith” should be replaced by “religion” and the concept of “race” should be removed from the section, for the same reasons that apply to section 135 a. It is also pointed out that the actions made punishable by section 349 a will also be covered by the prohibition of discrimination in the commission’s proposal for a new Act Against Ethnic Discrimination.

The commission has also assessed whether the Penal Code’s rules pertaining to enhancement of penalties because of racial motivation should be extended, but no such amendments are proposed.

Chap. 12, Ban on organised racist activities.

This chapter discusses the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), its requirement that state parties ban racist organisations, as well as the criticism of Norway for not adequately complying with this requirement. It also cites a report issued in the spring of 2001 by a study group appointed by the Norwegian Ministry of Justice for the purpose of examining measures against racism and neo-nazism in Sweden and Germany. This report provides an overview of the ban on associations in German law. The study group was against the introduction of this kind of legislation. The commission discusses arguments for and against the introduction of a ban on certain types of organisations and it cites various comments made by relevant authorities and organisations on the report. In the view of the commission, there are strong arguments both for and against such a ban. The commission’s conclusion is that Norwegian legislation ought to include a ban against organised racist activities. Other solutions might be difficult to reconcile with Norway’s obligations in accordance with ICERD. However, the counter-arguments, which are also presented, should be given considerable emphasis in connection with the specific wording of the ban. The commission does not propose the formal banning of organisations per se, which in any event might not be very effective because the groups carrying out much of the racist activity in Norway will not deemed to be formal organisations. Instead, the commission proposes the introduction of civil and criminal sanctions against the incitement of or participation in organised racist activities and other forms of collective acts of discrimination. The commission believes this ban, viewed in light of the other proposed provisions, would in practice satisfy the requirement of ICERD.

Chap. 13, Prohibition of ethnic discrimination.

Here the commission presents and gives its reasons for the key material provisions of the proposed Act. The geographical and substantive scope of applicability of the Act is discussed. The draft is based on the principle that the Act must be applicable in all areas under Norwegian jurisdiction. It is also proposed that the Act should generally apply in all areas of society with the exception of private relations and family life. This exception entails, for example, that the renting out of a room in one’s own dwelling would not be covered by the prohibition against ethnic discrimination. On the other hand, offers made to the general public such as the renting out of a flat where the lessor him-/herself does not live, etc. would be covered by the Act.

It is proposed that the Act should include a provision on its legislative purpose. The primary purpose is to provide a comprehensive and effective protection for individuals against unfair differential treatment based on the ethnicity of the person in question. In keeping with the proposed prohibition of ethnic discrimination, the main purpose is to prevent discrimination. The legislative purpose is however broader and aims also to contribute to the improvement of the conditions for ethnic minorities by ensuring equal rights and equal opportunities for everyone.

The commission also discusses the grounds for the prohibition of discrimination. In various acts and conventions, a number of concepts have been applied to specify the grounds of discrimination, such as race, skin colour, national or ethnic origin, language, religion, etc. The aim of the Act is to prevent ethnic discrimination, and the commission elaborates on the concept of ethnicity. This term houses a number of elements, and may be described in terms of the various factors that bind people together as an ethnic group. In this respect reference could be made to concepts such as culture, identityand nationality. The concept of raceis discussed, and the commission believes that this concept should not be used because it has no scientific content, does not include anything relevant to the evaluation of differences among ethnic groups, and has negative connotations.

The commission proposes that “ethnicity” alone be designated as a ground of discrimination. This concept includes a number of the elements that have been expressly stipulated in a number of acts and conventions. An enumeration of these elements may nevertheless be perceived as limiting, whereas the concept of ethnicity is inherently broad and flexible.

The commission pays special attention to the relationship between ethnicity and religion and points out that religion can also be an element of ethnicity. The commission does not propose that religion be mentioned in the Act as an independent ground of discrimination. Protection against discrimination that is related to religion, but independent of ethnicity, would go beyond the scope of the Act.

The commission proposes that the Act should provide express protection against both direct and indirect discrimination. Direct discrimination is defined as an act or omission which treats a person less favourably than others in a comparable situation because of the ethnicity of the person in question. The act does not have to be motivated by intent to discriminate, nor does the offender have to be aware that his/her act is prompted by the ethnicity of the person in question. Indirect discrimination is defined as an apparently neutral act, provision, etc. which unjustifiably puts persons of a particular ethnicity at a disadvantage compared with other persons.

In both cases, however, discrimination will not have occurred if the act is objectively justified by a legitimate aim, is not overly intrusive and if the means of achieving that aim are proportionate and necessary.

In addition, advertisements with a discriminatory content will also be covered by the prohibition against discrimination.

The commission proposes that a special prohibition against harassment on the basis of ethnicity be established. Although some forms of ethnic harassment may already be covered by other legislation, harassment is a special form of discrimination that ought to be specifically forbidden. By harassment the commission means repeated or persistent acts or statements that are aimed at particular persons because of their ethnicity, and which actually are or are intended to be offensive, degrading, etc.

The commission also proposes a special ban on instructions to discriminate or harass. Although discriminatory acts that originate from an instruction will be covered by the general prohibition against discrimination, a ban of the type mentioned here would cover the instructions themselves, regardless of whether they have resulted in any concrete discriminatory acts or harassment.

In connection with the general prohibition against discrimination in civil law, it is proposed that it also be stipulated that it is forbidden to incite or participate in discrimination in association with others. In chapter 12, the commission proposes a provision that will cover the same circumstances.

The commission proposes that affirmative action on behalf of certain ethnic groups or individuals in order to promote the objectives of the Act shall not be regarded as discrimination. This is in accordance with the provisions of ICERD, other conventions, and the legislation of other countries.

Anyone who wishes to initiate proceedings relating to alleged ethnic discrimination runs the risk of being subjected to reprisals of a more or less serious nature. The commission proposes that special protection against such reprisals be introduced through a provision that expressly forbids reprisals against a person who has filed or intends to file a complaint about a violation of the law. It is proposed that this ban should also apply to witnesses in a discrimination case. Cases where the plaintiff has behaved with gross negligence, e.g. by filing a false or frivolous complaint, will not be covered by this protection.

The commission proposes that a general rule on shared burden of proof should apply in civil cases pursuant to the Act Against Ethnic Discrimination. This means that where there are circumstances that give reason to believe that discrimination has occurred, such discrimination will be regarded as proved unless the person who committed the act substantiates that discrimination did not occur. This provision will serve to promote an effective enforcement of the Act, and may be of crucial importance in ensuring that the Act functions as intended. In addition, when it is alleged that a reprisal in violation of the Act has occurred, the same burden of proof applies.

The commission discusses whether a duty of disclosure should also be imposed upon persons alleged to have discriminated in violation of the Act. This duty of disclosure will help the complainant to clarify whether discrimination has occurred. The commission proposes that this kind of rule be limited to hiring of employees in accordance with the current provisions in section 55 A of the Work Environment Act.

Chap. 14, Sanctions.

The commission discusses which sanctions ought to be available when the Act is violated. Compensation may be given for economic loss pursuant to general rules relating to damages. The commission proposes that a special arrangement be established to provide victims of discrimination with discretionary compensation for non-pecuniary injury in cases where there has been a violation of the Act Against Ethnic Discrimination. The general rule is that compensation should always be given when individuals are affected by a violation of the law, but in special cases exceptions may be made. If the discriminatory circumstances are of a lasting nature, it should be possible to issue an injunction to terminate or correct such circumstances, or to take other measures that are necessary in order to bring about compliance with law. It should also be possible to impose a coercive fine in order to ensure compliance with such an injunction. Criminal sanctions pertain to the ban against organised racist activities, cf. chap.12, and to the neglect to comply with an injunction to cease or correct illegal conditions, etc.

Chap. 15, Special measures to promote ethnic equality.

The commission presents various measures that may be relevant in the efforts to achieve ethnic equality, beyond that which can be achieved through a ban against ethnic discrimination. The commission proposes that a special duty to act be imposed upon public authorities, upon employers in both the private and public sectors, and upon employer and employee organisations. This duty will entail an active, planned effort with the aim of promoting the objectives of the law. It is also proposed that annual reports or annual budgets include an explanation of the measures that have been initiated or planned pursuant to this obligation.

In addition, the commission discusses whether registration of information about ethnicity can be used as a policy instrument to ensure ethnic equality, primarily in the employment sector. There are strong objections to this kind of registration, both as a matter of principle and for historical reasons. At the same time, this kind of registration could help provide information that may be significant in the efforts to promote equality among various ethnic groups. The commission reviews the key provisions of the Personal Data Act in order to show the possibilities available under current law to register information about ethnicity. It also gives some examples of key registers that already contain some of this information, and discusses the possibilities of gathering information through a cross-coupling of these registers. Even though the commission believes that there is a great need for a detailed information base relating to the situation for ethnic minorities in various areas of society, the commission does not propose the introduction of a more comprehensive legal authority for the registration of information about ethnicity, than the existing one.

Finally, the question of whether to employ non-discrimination clauses in connection with public procurement is discussed. The commission believes that it would be possible to make use of such clauses as a part of the efforts to achieve ethnic equality. However, this raises a number of questions that the commission has not had an opportunity to examine, and the commission proposes that a special study be made of the active use of non-discrimination clauses in the purchase of goods or services for the public sector and in connection with public building and construction contracts.

Chap. 16, Discrimination in bars, restaurants, etc.

This chapter discusses questions relating to ethnic discrimination in connection with access to bars, restaurants, etc. This kind of discrimination will be covered by the Act’s general ban on ethnic discrimination, but here it is discussed whether special sanctions should be established to prevent this kind of discrimination. A survey is made of current law in order to assess the possible sanctions that are available under the Act on the Sale of Alcoholic Beverages, the Food Services Act ( Serveringsloven) and the Penal Code. The commission believes there is a need for more effective protection and proposes that special authority be granted for the short-term closing of a bar, restaurant, etc. if this is necessary to prevent or end violations of the Act’s ban on discrimination. It is proposed that a decision regarding this kind of closing be made by the District Court in response to a petition from the body that the commission proposes be established as a first instance to enforce the Act (the Ethnic Discrimination Supervisory Authority) cf. chap. 19. Furthermore, the commission proposes certain amendments to the Act on the Sale of Alcoholic Beverages and the Food Services Act. The aim is to expand the possibilities of taking into consideration ethnic discrimination when issuing or annulling a licence to serve alcohol or licence to serve food and drink, and to expand the authority of the police to close down a bar, restaurant, etc. for a short period of time.

Chap. 17, The relationship to the Work Environment Act and housing legislation.

The commission discusses the relationship between the existing provisions in the Work Environment Act relating to the ban against ethnic discrimination in hiring employees and the new Act Against Ethnic Discrimination. The new Act is meant to be general in nature and will thus also cover the employment sector as a whole. Therefore, the commission proposes that the grounds for discrimination that are related to ethnicity be removed from section 55 A of the Work Environment Act. In cases of dismissal, there will nevertheless be a double protection against ethnic discrimination under both the new Act and the Work Environment Act’s general rules, because the latter also includes a ban against unjustifiable grounds for dismissal in general. The Act against ethnic discrimination will also apply to the housing sector, and the commission does not see any reason why housing legislation should contain separate, corresponding rules prohibiting ethnic discrimination.

7 Documentation of ethnic discrimination, enforcement of the Act against ethnic discrimination and the future role of the Centre for Combating Ethnic Discrimination

Chap. 18, Documentation of the type and extent of ethnic discrimination.

The commission discusses the current situation as regards the registration and gathering of data pertaining to ethnic discrimination. In Norway at present there is no comprehensive common system for gathering systematic and reliable data. Methodological difficulties in documenting ethnic discrimination are discussed, and an account is given of the bodies that have more or less developed routines for gathering data about the type and extent of this kind of discrimination. In order to be able to combat discrimination, it is necessary to have a reliable information base, and various ways of improving the gathering of that information are indicated. This could involve various ways of registering cases and complaints in various public and private bodies, the gathering of statistics and reporting, research and studies, media monitoring, etc. The commission believes there is a need for comprehensive documentation of the nature and extent of ethnic discrimination, which requires a revision of registration routines, systematic reporting from affected parties, improved gathering of statistics, special studies and research. The commission proposes that the overall responsibility for these tasks be delegated to a Centre for Ethnic Equality cf. chap. 20.

Chap. 19, Enforcement of the Act.

This chapter contains the commission’s evaluations and proposals as to which bodies ought to enforce the Act and what kind of functions and authority they ought to have. Litigation through the courts of civil cases involving ethnic discrimination should be avoided as much as possible, and special administrative bodies should be established to enforce the act. The commission thinks that these functions cannot be delegated to any existing body, cf. chap. 20 on the future role of the Centre for Combating Ethnic Discrimination. The commission proposes that the Act should be enforced at first instance by a new, independent body that can be called the Ethnic Discrimination Supervisory Authority. It is assumed that there will be a low threshold for taking contact with this body, and that the supervisory authority will be given a key role in the future work against ethnic discrimination. The supervisory authority should handle cases that are brought before it by persons who think that they have been subjected to ethnic discrimination or by others who think that they are aware of discriminatory circumstances. Nevertheless, the supervisory authority should have some freedom to assess whether there are grounds for going further with a case. The supervisory authority must also be able to initiate proceedings on its own initiative. Ordinarily, the aim should be to arrive at a solution through mediation. If this does not succeed, the supervisory authority should have the competence to make binding decisions in the case. In addition to taking a stand on whether there has been any violation of the Act, the supervisory authority should also have the competence to utilise all of the sanctions that are at its disposal and that are discussed in chap. 14.

It is also proposed that an appeals body be established, the Ethnic Discrimination Appeals Board, to handle appeals of decisions made by the supervisory authority.

The formal decision-making authority of the supervisory authority and the appeals board will be limited, however, in relation to other administrative authorities. The supervisory authority and the appeals board will not be able to invalidate or amend administrative decisions made by other public authorities, nor will it be able to issue an order as to how the administrative authority must be used in order to avoid violating the Act. Nevertheless, it may decide whether there exists any discrimination in violation of the Act, and when the case pertains to sectors of the public administration other than the Government or a ministry, it will be possible to grant discretionary compensation.

The commission also discusses certain aspects of the proceedings of the case and proposes a provision relating to duty of disclosure to the supervisory authority and the appeals board. The relationship to the Public Administration Act and the Freedom of Information Act are discussed.

The commission proposes that decisions by the supervisory authority or the appeals board should be able to be brought before the courts for a full review. Cases may also be brought directly before the courts without going through the special enforcement bodies, though it is not expected that this will occur very often in practice.

In particular, the commission discusses the right of organisations to initiate proceedings on behalf or in support of persons who are subjected to ethnic discrimination. It cites the opportunities that are available in current law, and a special rule is proposed that expands the right to use organisations as legal representatives.

Chap. 20, The Centre for Combating Ethnic Discrimination and its future role.

The commission gives an account of the current activities of the Centre for Combating Ethnic Discrimination, which currently provides legal assistance, monitors and documents the type and extent of racial discrimination, and conducts activities to influence the public and private sectors. The centre was established in 1998 for a trial period, which would have originally expired in 2002. It has now been decided by the Government that the centre shall be continued on a permanent basis, but its tasks and organisation are to be evaluated in connection with the proposal for a new Act. The commission’s terms of reference specifically state that the commission should evaluate the future role of the centre, and the commission discusses three different models for its continuation. All of these models must be considered in light of the commission’s opinion that special bodies are required to enforce the new Act cf. chap. 19. The first model involves maintaining the centre as a legal aid office. However, the commission is not in favour of this model and points out that the establishment of a separate body for enforcing the new Act will reduce the need for a special arrangement for legal aid. To the extent that it will still be necessary, this need ought to be covered by other existing providers of legal aid. The second model that is discussed is a transformation of the centre into a Centre for Ethnic Equality. This is the solution that the commission recommends. The Centre for Ethnic Equality may have functions such as development of competence, information campaigns, a general support and guidance service for public and private bodies, and the documentation and monitoring of ethnic discrimination. It is expected that the centre will play a general role as an advocate in this field. The third model that is discussed is the transformation of the centre into the supervisory authority for the new Act against ethnic discrimination. The commission does not recommend this model because a number of the above-mentioned functions that can be delegated to a Centre for Ethnic Equality cannot be handled by a supervisory authority. The commission believes that it is necessary to have a special body in addition to the supervisory authority to handle these functions and therefore proposes that the Centre for Combating Ethnic Discrimination be transformed into a Centre for Ethnic Equality.

8 Comments on the legislation. Economic and administrative consequences

Chap. 21, Draft of an Act Against Ethnic Discrimination and amendments to other acts. Comments on the individual provisions.

The commission makes a comprehensive presentation of the draft legislation with explanatory comments on the individual provisions.

The commission’s proposed amendments to other acts are of two types: amendments which are directly connected to the new proposed Act, and amendments that are independent of the enactment of the new Act.

Chap. 22, Administrative and economic consequences of the commissions draft.

The commission notes that the socio-economic benefits of legislation against ethnic discrimination are difficult to assess. As regards the general consequences for the public sector, the duty to act for all public authorities proposed by the commission, including in their capacity as an employer, will require a certain amount of effort and resources. At the same time, it must be assumed that the proposal will lead to a better total utilisation of resources. The proposals that will undoubtedly have economic consequences are the establishment of new enforcement agencies (the Ethnic Discrimination Supervisory Authority and the Ethnic Discrimination Appeals Board). The commission estimates that it will be necessary to fund these two bodies with a total of NOK 7.5 million per year. The proposed Centre for Ethnic Equality will be a continuation of the Centre for Combating Ethnic Discrimination and is assumed to have budgetary needs that roughly correspond to those of the centre, i.e. NOK 6 million in 2002.

The consequences for the private sector would be relatively small. The legislation elaborates and amplifies the requirement of equal treatment and does not entail any economic burdens above and beyond those that derive from the proposal of a duty to act for employers and employee and employer organisations. The commission assumes, however, that measures that are implemented to comply with the duty to act will result in a better total utilisation of resources.