Monday, February 02, 2009

A Brief History of Equalities Law in the UK

This year, barring sudden and unexpected general elections, the Government will table the new Single Equalities Bill.

The new Bill is intended to replace over a hundred existing Acts of Parliament, Regulations and judicial clarifications of equalities law in Britain. In the process, it is hoped to make the law simpler and more consistent for everyone to understand, whilst extending some new protections to people whose rights were not equally enshrined in statute before.

To understand the significance of what the new law needs to do, and how it is likely to compare with the laws of other countries, it is necessary to go back to the beginning – and to look at how this kind of legislation has evolved over the last 40 years.

Where do we begin?

The contemporary framework for equal rights protection in Britain can be traced back to the 1960's and 1970's and the Labour Government of Harold Wilson.

Interestingly, if you want to look for equality legislation prior to this then you would have to go all the way back to the Representation of the People Act in 1928 – which finally gave equal voting rights to women.

The legislative road began with the first Race Relations Act in 1965 – followed by the Equal Pay Act in 1970.

The fact that Equal Pay between men and women doing similar work is still a problem in 2008 tells us something about the ineffectiveness of legislation alone in tackling deeply embedded inequalities.

But the 1970's were certainly a heady time. The Sex Discrimination Act in 1975 was accompanied by a more comprehensive Race Relations Act in 1976 – all these moves echoing similar forms of protection introduced in the United States a decade beforehand.

Indeed these three Acts of Parliament (Pay, Sex, Race), plus a few accompanying regulations, were all you needed to know about Equality in the 1970's and for almost two more decades.

Going European

In 1972 Britain became a member of what was then the "European Community" – and which later became the "European Union" in 1992, with the signing of the Maastricht Treaty.

The Conservative government of the time opted out of the "Social Chapter" of the treaty which included provisions on which anti-discrimination law would be based.

Although the Tories did pass the Disability Discrimination Act in 1995, it was not until Tony Blair's "New Labour" government won the 1997 election that the UK opted in to the social provisions of EU law.

In 2000 the EU overhauled and introduced new Directives explicitly protecting people with a particular sexual orientation, religion, belief and age, as well as updating the protection against disability, race and gender discrimination.

But the way in which these enhancements been implemented in Britain – often by tacking regulations onto existing heavily amended Acts of Parliament – is what accounts for the complicated system that confronts us all today.

Overwhelmingly Complex and Inconsistent

The Equality and Human Rights Commission, which replaced the EOC, CRE and DRC last year, says that the total volume of all this evolved Equalities Legislation is now immense and unwieldy. One estimate suggests that you would need to be conversant with over 100 separate Acts of Parliament, regulations and case precedents to grasp it all.

Understanding this huge rickety framework demands familiarity with many different concepts too.

Firstly, the history of the way in which protection has evolved around particular groups in society means that the law has separate approaches to discrimination that is grounded in your sex, race, disability, sexual orientation, religion or belief and age. Further kinds of discrimination related to other experiences – such as being a carer, or changing your gender – have given rise to "case law" (patches in the law) to cover the gaps as they are revealed by high profile legal action.

Very little of this law is consistent though.

Disability protection was first enacted in 1995 and uses different language and ideas than 1970's sex discrimination law. The new Race Relations (Amendment) Act in 2000 played leapfrog – and then the Disability Discrimination Act was also revised in 2005.

Different Forms of Discrimination

Laws originally set out to tackle direct discrimination. E.g. "No Jews, No Blacks". Indirect discrimination has been much harder to pin down, as it takes different forms in different spheres of life.

This means that, if you're a black woman, you not only have to decide whether your discrimination is based upon sex or race, but the same action by an employer or service provider can be judged differently, depending on which one you choose.

The same goes for harassment – which is differently understood depending on whether you have experienced sexual harassment or racial harassment for instance.

Some laws have covered people in the sphere of employment or education, but not in the provision of goods, services or housing.

People who've undergone or are undergoing gender reassignment finally obtained employment and vocational education protections in 1999 – but have only very lately obtained protection from discrimination in the supply of goods or housing in April this year.

If you're Gay or Lesbian then you didn't have any protections at all till April 2007 – when provisions were tacked onto the Equalities Act. Till then a gay couple could be refused a hotel room or service in a bar, for instance.

Complicated Exceptions

The piecemeal way these steps have occurred mean that the exceptions are really complex too.

Any equalities advance will have people who resist the provision. They're the sort of people who say, "Of course I support equal rights for xxxxxx but..."

The original 1975 Sex Discrimination Act was riddled with special "but..." clauses. They're called "Genuine Occupational Qualifications". Over the years many of these have been whittled down by amending regulations, as society became more relaxed.

Yet each new step has its' opponents.

The protections for gay and lesbian people contain exceptions which were insisted upon by religious groups, for instance – and these operate in different ways to the exceptions for transsexual people, or for disabilities.

How do you define Disability? Who do you compare yourself with to say that a particular action is discriminatory? Do people see some of the behavioural conditions in young people as disabilities for instance?.

Mistaken Identity

Are people protected if they merely associate with someone who attracts discrimination? Supposing someone simply perceives or imagines you to be Gay? ... or Jewish?

Are these kinds of situation handled consistently within the body of law?

The answer's "No".

And then there's a new problem that's come along in the last seven or eight years...

The Burden of Responsibility

Up until recently, all discrimination law worked on the basis that the person who claimed discrimination needed to use the law to pursue the perpetrator. There are tens of thousands of such cases that go before tribunals every year – an estimated 50,000 Equal Pay cases from underpaid council workers, for instance.

But many people who experience discrimination (better than calling them "victims") simply don't have the resources or stamina.

A sex discrimination case may take two years. It's likely to be opposed strongly by an employer with deeper pockets to bring in the best lawyers.

The recompense at the end may not help much. You may be labelled as a trouble maker. Any judgement in your favour may be appealed.

Tribunal decisions only affect the individual's case – they can't address the circumstances of other people with that employer, or require the employer to make systemic changes.

It's these kinds of limitations which were recognised in the Stephen Lawrence Enquiry – in finding the Metropolitan Police Service institutionally racist. The recommendations of that enquiry led to the Race Relations (Amendment) Act 2000 introducing the concept of a statutory duty to eliminate race discrimination and promote better relations between racial groups. It came into effect in 2002.

The Public Sector Equality Duties

This potent new idea turns the responsibility for action on its head. Even though it only applies to public authorities (the private sector is exempt) it required the organisations responsible for society's whole framework to examine all their activities in a published Race Equality Scheme, carry out Equality Impact Assessments on their policies and strategies, and draw up action plans to produce specific outcomes.

The idea of a public sector duty was reproduced for Disability in 2006 as part of the revised Disability Discrimination Act. A Gender Equality Duty was also written into the Equalities Act and came into effect in April 2007.

These duties can indirectly apply to other organisations too – even if they are not public authorities themselves – through public sector procurement.

Again, there are complex differences though. The Disability Duty requires public authorities to involve stakeholders in their planning – the other duties only require consultation. The Race duty is the only one to have the clause about promoting good relations.

See how this gets to be so complicated?

Time for a Rethink

Discussion about having a Single Equality Act, covering everyone, really began to get under way in 2002 – at about the same time as the Government started to consult on replacing the three equality commissions with what is now the Equality and Human Rights Commission. The two ideas go naturally together.

Other countries have long since unified their legislation in this way. Unless you count the US Constitution of 1791 then Canada is generally regarded to have led the modern movement.

Canada's Human Rights Act 1985 goes beyond our own by prohibiting discrimination on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction. It also placed the duty on employers and individuals (including businesses) to avoid discrimination and promote equality.

Other countries such as Australia and Norway have taken similar approaches too, with solutions that combine an underlying principle of human rights and the idea of a single commission to police it all.

It is that emphasis on ending discrimination which takes the Canadian approach beyond Human Rights as our law defines it, and creates a single general purpose instrument for encouraging equality.

It's unlawful under the Canadians' 1985 Act:

  • to discriminate or harass an individual; or
  • to deny access to the provision of goods, service facilities or accommodation;
  • to deny access to commercial premises or residential accommodation;
  • to refuse employment or continued employment, or
  • to differentiate adversely against an employee;
  • to discriminate during employment application or advertisement; or
  • to pay men and women unequal wages for the same work.

A person who feels that they have been discriminated against on more than one ground can still make a claim through the Canadian Human Rights Tribunal. This means that multiple- discrimination is recognised too.

So this is the kind of approach which many commentators hoped to see emerging from our Government. We had a long wait though – even though the introduction of a Single Equality Bill was a 2005 manifesto commitment.

Next time I'll discuss the approach which the UK Government took, and how it went about it.


Anonymous said...

I must say Its good to read your blog I agree with your comments thoroughly however Canada has such documents and in practise its very difficult to pursue ones rights and seems to have more of a theoretical justice system, and this was explained to me by a practising Lawyer in Canada who was from the UK who stated it is harder to pursue your rights despite the amount of legislation due to the amount of corruption in the police and legal system. So maybe we are behind but maybe we can make what we are doing count for something.


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