Anti-Discrimination Laws in the UK | Analysis

In recent years the Government has been attempting a massive review of the UK’s anti-discrimination laws. The impetus behind this, amongst other things is the influence from Europe. There have been several European Directives which have required implementing and there is becoming a plethora of confusing anti-discrimination laws. More recently we have seen the introduction of the Employment Equality (Age) Regulations 2006, The Equality Act 2006 and there is also a new Commission for Equality and Human Rights^[1] which replaces the Equal Opportunities Commission, Commission for Racial Equality and the Disability Rights Commission. In light of recent changes in the law and with the decision that more changes were necessary, the Discrimination Law Review was set up in 2005 with the purpose of considering the:

“opportunities for creating a clearer and more streamlined discrimination legislative framework which produces better outcomes for those who currently experience disadvantage”.^[2]

A Consultation Paper was then published in June 2007 which establishes the Government’s proposal of a Single Equality Bill. Only a few months earlier, in February 2007 was Trevor Phillip’s Equalities Review published. Whilst the consultation paper and the Equalities Review considered the same topic, they have worked in parallel and looked at different angles. The consultation paper considered the legislative framework whilst the Equalities Review looked at the wider issues surrounding the topic of inequality.^[3]

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This essay will consider these reviews and consultation paper, and discuss the Government’s proposals for a new anti-discrimination law in the UK. We will firstly examine the history behind the proposed changes in the law before turning to discuss what exactly the Government is proposing. We will then look to responses to the Government’s proposals, including analysing criticisms that the planned changes fail to address issues of enforcement and access to justice concerns.

A fresh look at the anti-discrimination laws of the UK was deemed necessary after the much publicized Stephen Lawrence enquiry.^[4] The Macpherson Report concluded that there was “institutional racism” both within the Metropolitan Police and the Police generally. The report made no less than 70 recommendations and the Government has been keen to implement them. The Race Relations Act 1976 has now been expanded so that it covers public bodies and authorities, and changes to double jeopardy laws have been implemented.^[5] The proposed changes in anti-discrimination are intended to be an extension of the review of racism and other discriminatory practices and to move the UK forward into a 21^st Century where such discrimination is a thing of the past. The changes in the law brought about by this report are more than likely to be mirrored and taken across so that they do not only apply to racial discrimination but also age, gender, religion and so forth. There is no denying that the Macpherson report has had a resounding effect but how successful the Government’s proposals will be remains to be seen.

Trevor Phillips in his Equalities Review provides a definition of an equal society:

“An equal society protects and promotes equal, real freedom and substantive opportunity to live in the ways people value and would choose, so that everyone can flourish. An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”^[6]

He set out 10 recommendations in his review, which were focused on setting definitions and goals for equality and setting up a simpler legal framework with a better enforcement regime. The review recommends that the Government’s proposed Single Equality Act covers all bases of inequality, for example it should cover age, gender, sexual orientation and racist discrimination amongst others all under the same legislation. The act should also be “simpler, more coherent”.^[7] Phillip’s review places a large emphasis and role, to the new Commission for Equality and Human Rights. He suggests that the Commission should “play a more dynamic role in enforcement”, which would involve inspections of known equality gaps and transparency should be encouraged. Public and private bodies should also be made to measure and publish their equality performance.

The Equalities Review clearly has ambitious and far reaching aims, but it does not provide very clear explanations for how these changes are to happen. It appears as if most of the regulatory and enforcement work it attributes to the Commission for Equality and Human Rights, as is also recommended by the consultation paper, although seeing as the Commission was not up and running at the time these reports were written, no feedback was possible from them themselves. The majority of Trevor Phillip’s review is concerned with the history of inequality in the UK and its effect and what the future would look like without discrimination. Very little is focused upon definite ideas and practices which could be implemented to ensure that this vision is a success. It works well as a tandem document, providing a background into the necessity for a change in law and for providing an ideal to aspire to.

The Consultation Paper, a Framework for Fairness however is supposed to be more concrete and provide definite, workable proposals for discussion. The paper is split into three parts, each of which we will consider in turn. There is also a more recent publication on the single Equality Bill is from the Government Equalities Office – Framework for a Fairer Future: The Equality Bill, which was published in June 2008 which also provides some clarification on some of the issues raised in the consultation paper.

Part one of the consultation paper relates to harmonising and simplifying the law. This we will see is essential, not least because of the recent flurry of case law and legislation on discrimination laws. Employers and public bodies need to know the current law and this is easier if it is codified into one document. The proposal is that the Commission for Equality and Human Rights will be pivotal in this aspect, publishing practice notes and guidance and working together with public, private and volunteer organisations. This section also includes proposals on equal pay provisions, meaning that truly, everything relating to discrimination is brought under the umbrella of this one act. It is hoped that this codification procedure will make the law more readily accessible and easier to understand and create a “culture of compliance with the law”.^[8] Ensuring that the law is simple and easy to comprehend is vital in enforcing the law, as people are more likely to adhere to a law that they are aware of an fully understand. Greater transparency will also increase access to justice, as citizens will be more aware of their rights and the means of resolving a discrimination grievance.

Part two of the consultation paper concerns making the law more effective. This is a large concern where anti-discrimination law is concerned, as it is often felt that it is not the law that is the problem, but rather the fact that enforcing the law is difficult. It is this section of the consultation paper that is the weakest. The proposals include simplifying and extending public sector duties and improving the practice of equality in the private sector and outside the workplace. There are very little concrete ideas or tools which are suggested to ensure that the new laws are adhered to. The proposals mention encouraging the use of alternative dispute resolution outside of workplaces situations and giving an increasing role to the Ombudsman but these are measures that are used after an alleged discrimination has taken place. Whilst access to justice issues are clearly important, surely the primary aim should be to prevent the discrimination in the first place? Preventative measures discussed in the consultation paper are a ‘light touch’ equality check tool and a voluntary equality standard. These provisions are insufficient. They may be all well and good for those businesses that may be discriminating unknowingly, but where are the enforcement procedures for those who wantonly breach anti-discrimination laws?

Part three relates to modernising the law. This reflects the proposals in Trevor Phillip’s review. The paper states that whilst part of the aim is a codification of the current law, it wants to go beyond this:

“Rather than just consolidating the current legislation, we want to take this opportunity to review it, and decide whether we can improve it, to make it fit for the 21st century.”^[9]

This report recognises that the law does need to be streamlined, but also modernised. For example, the proposed single Equality Act will codify the recent changes to the law regarding public bodies and racism and gender and disability discrimination, but it will go further than this and include “gender reassignment, age, sexual orientation and religion or belief.”^[10] Further than this the new Act is proposed to include some altogether new laws regarding age discrimination. There is already new legislation in force protecting from age discrimination in the workplace and the plan is to extend this to the supply of goods and services:

“The Equality Bill will enable us to make it unlawful to discriminate against someone because of their age when providing goods, facilities and services or carrying out public functions.”^[11]

This is a contentious claim on the part of the consultation paper, as we will see later. There may well be new protections provided but many critics argue that the proposals do not go far enough.

Clearly, therefore the new Act proposal promises the world, but can it deliver? There have been several responses to the consultation paper, and many of them negative. We will turn to discuss a selection of these now. We have seen how the Racial Equalities Commission produced a damning response, which is interesting, especially as the Racial Equalities Commission has now merged into the new Commission for Equality and Human Rights. If an organisation that is to be at the centre of the new proposals is not entirely supportive of them, it would seem that the Government is on the back foot already.

The Citizen’s Advice Bureau’s response is less overt in its criticism but still feels that the proposals for a single Equality Act do not go far enough.^[12] The Citizen’s Advice Bureau’s response comments that there appears to be no correlation between the new Equality Act and existing Human Rights legislation. They are of the opinion that the human rights framework should not only be a consideration in the new legislation but that they should be in some way integrated:

1. “Not to do so seems to us to be a missed opportunity to establish a new, more integrated and effective system of human rights and discrimination law which will be fit for purpose for decades to come.”^[13]

Amongst other things, the Citizen’s Advice Bureau also believes that the proposals are weak in the areas of public authority duties, and that there is no parity between strands of discrimination. Of particular concern to them is that there seems to be less provided for the elderly, comparably to other strands, specifically regarding to access to goods and services. Predictably also, their response is critical of the lack of enforcement measures in the new proposals. The general consensus of this organisation’s report is that the proposals do not go far enough and they want the new law to go further than simply codifying what exists already. They are of the opinion that the proposals need an urgent review:

“We would therefore urge the Government to look again at the challenge of how to achieve a workable, fair, straightforward and effective single equality law, and to address our concerns about compliance, enforcement and sanctions and the changing context of discrimination.”^[14]

Another key organisation which has responded to the new proposals is Age Concern.^[15] Their report seems to also suggest that they do not think that the new proposals are sufficient. They are fully supportive and understanding of the need for codification and simplification but they also view the proposed Act as a wasted opportunity.

They agree with the Citizen’s Advice Bureau concerning the duties of public bodies and feel that by only requiring them to focus on a limited number of equality requirements the law is actually taking a step back. They are again critical of the proposed enforcement methods and show concern about access to justice. They believe that there is still a poor awareness of legal rights under anti-discrimination law and that there is very little legal aid available which will hinder people’s access to justice. They are concerned that the proposals do little to address these issues:

“Low public awareness of legal rights under discrimination law, together with the severe limitations in availability of legal aid for advice and representation in this field, represent serious barriers to effective access to justice. The idea of allowing representative claims, with an appropriate filter stage, should be revisited. This would allow bodies such as the CEHR, trades unions and consumer organisations act on behalf of groups of claimants.”^[16]

In fact, looking generally at some of the responses to the consultation paper and there is a striking theme. Many organisations have the same concerns on the same areas and while being supportive of the ideology of a single Equality Act are disappointed that it is not more revolutionary.^[17]

The question of whether the Government should rethink it’s plans for reform is a tricky one. There is definitely a general consensus that reform is necessary, despite the current criticisms of the proposed reforms. There is no doubt that the law needs simplifying and thus making it more transparent. However, there is clearly little point in implementing yet more legislation which is not far reaching enough and will require further legislation in the not too distant future to bring it more up to date. This will only result in adding more legislation to the plethora we already have. The government has an ideal opportunity here to really make a difference and take a stand against discrimination and it is very important that they make the most of it.

Nevertheless, whilst the review of the law is clearly necessary, the government definitely need to review the responses to the consultation paper and take them very seriously into account. There are several common points of contention which must be addressed. There are clearly issues that need resolving regarding duties of public authorities and the new proposals for limiting the amount of equality requirements is a concern to both the Citizens Advice Bureau and Age Concern. There is a worry that if the government is too cautious with the new legislation, then anti-discrimination law will be taking a step back and will retreat from the ideas and motivation provided by the Macpherson report.

The government will also need to review the numerous concerns regarding the enforcement of these new laws. Additionally, there is little consideration of how to make it easier for people to have access to justice in these proposals. The National Union of Students even comments in their review that they feel that the government has overlooked the role of education and that it can play a vital part, not only in educating about inequality but also about the law and access to justice through it.^[18] It is essential that nothing is overlooked in creating such a potentially great piece of legislation, and clearly education can play a vital part, not least in attempting to rid our society of the prejudices that have resulted in the need for such legislation.

If the government addresses the issues contained in many of the responses to the consultation paper they should consider bringing out a wider, more expansive and more complete proposal. The current proposals have good intentions but have not been entirely thoroughly thought out. There is also not enough correlation between Trevor Phillip’s review and the consultation paper. Many of the issues raised are covered, but not always to a satisfactory standard. For example, it would probably greatly impress the organisation’s whose reviews we have looked at here if there was some indication of Phillip’s recommendations of measured equality performance and regular and involved action by the Commission for Equality and Human Rights in the proposals, both which would aid enforcement of these laws.

Overall therefore, the Government do not need to rethink its plans for reform, just the content of the reform so that the new legislation brings the UK to the forefront of the legal world in the field of human rights and anti-discrimination, which is the position we want to be in.

Bibliography

ADCS consultation response A framework for fairness: The Government’s ideas for a law about equality. Ideas from the Discrimination Law Review, found online at http://www.adcs.org.uk/ (as accessed on 1^st December 2008)

Age Concern, Summary: Age Concern’s response to a Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, September 2007

Citizen’s Advice Bureau, Discrimination Law Review A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain Citizens Advice Response, September 2007

Discrimination Law Review, Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, June 2007

Equalities Review, Fairness and Freedom: The Final Report of the Equalities Review, Trevor Phillips, February 2007

Government Equalities Office, Framework for a Fairer Future: The Equality Bill, June 2008

Local Government Association Response to Consultation paper, September 2007, found online at http://www.lga.gov.uk/lga/aio/103575 (as accessed on 1st December 2008)

Lockton, Deborah, Employment Law, Palgrave Macmillan: London, 2008

Lord Lester of Herne Hill & Kate Beattie, The New Commission for Equality and Human Rights, P.L. 2006, Sum, 197-208

McColgan, Aileen, Reconfiguring discrimination law, P.L. 2007, Spr, 74-94

McCrudden, Christopher, Equality legislation and reflexive regulation: a response to the Discrimination Law Review’s consultative paper, I.L.J. 2007, 36(3), 255-266

National Union of Students, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain: NUS Response, September 2007

Smith, Ian & Gareth Thomas, Smith & Woods Employment Law, Oxford University Press: Oxford, 2008

The Equality Bill, Government Response to the Consultation, July 2008

The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William MacPherson of Cluny, The Stationary Office, February 1999

www.equalities.gov.uk (as accessed on 1^st December 2008)

www.westlaw.co.uk (as accessed on 1^st December 2008)

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Footnotes

^[1] Established in October 2007

^[2] Consultation Paper, Discrimination Law Review, Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, June 2007, p.3

^[3] See McCrudden, Christopher, Equality legislation and reflexive regulation: a response to the Discrimination Law Review’s consultative paper, I.L.J. 2007, 36(3), 255-266

^[4] The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William MacPherson of Clunt, The Stationary Office, February 1999

^[5] See Criminal Justice Act 2003

^[6] Equalities Review, Fairness and Freedom: The Final Report of the Equalities Review, Trevor Phillips, February 2007

^[7] Ibid

^[8] Consultation Paper op cit (fn 2) p.16

^[9] Consultation Paper Op cit (fn 2) p.12

^[10] Government Equalities Office, Framework for a Fairer Future: The Equality Bill, June 2008

p. 13

^[11] Government Equalities Office, Framework for a Fairer Future: The Equality Bill, June 2008

p. 16

^[12] Citizen’s Advice Bureau, Discrimination Law Review A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain Citizens Advice Response, September 2007

^[13] Ibid, p. 4

^[14] Ibid, p. 5

^[15] Age Concern, Summary: Age Concern’s response to a Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, September 2007

^[16] Ibid, p. 5

^[17] Local Government Association Response to Consultation paper, September 2007, found online at http://www.lga.gov.uk/lga/aio/103575 (as accessed on 1st December 2008); ADCS consultation response A framework for fairness: The Government’s ideas for a law about equality. Ideas from the Discrimination Law Review, found online at http://www.adcs.org.uk/ (as accessed on 1^st December 2008) and National Union of Students, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain: NUS Response, September 2007

^[18] See National Union of Students, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain: NUS Response, September 2007