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Discrimination Law Review
What is the Discrimination Law Review?
The Discrimination Law Review (DLR) was set up in February 2005 to 'undertake a fundamental review of discrimination and legislation in Great Britain, and bring forward proposals for a clearer and more streamlined equality legislation framework, which produces better outcomes for those who experience disadvantage.' The government asked it to consider the fundamental principles of discrimination legislation and its underlying concepts and do a comparative analysis of the different models for discrimination legislation, investigate different approaches to enforcing discrimination law, develop an understanding of the evidence of the practical impact of legislation - both within the UK and abroad - in tackling inequality and promoting equality of opportunity, and investigate new models for encouraging and incentivising compliance.
What has happened to the Discrimination Law Review?
On 12 June 2007 the Discrimination Law Review published its long awaited and much postponed green paper: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain. The timing of publication seems to offer one very disturbing message about the government's commitment to the process of discrimination law review - the consultation ended on 4 September, and so it took place over the holiday season, just when the current Commissions (the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission) were winding down, and before the new Equality and Human Rights Commission was operational. It is true that the green paper had been long awaited, but the publication and deadline dates seems to suggest a degree of indifference to the product of the consultation that is sought.
How did the Commissions respond?
It is perhaps not surprising that there were very mixed re-actions to its content. While the Disability Rights Commission commented that the green paper had 'conspicuously failed to measure up to its terms of reference', the Equal Opportunities Commission similarly noted 'today's Green Paper has missed a real opportunity to tackle the pay gap'.
And while the Commission for Racial Equality rather more mildly noted that 'the Green Paper needs to improve through this consultation, if we are to get the modern simple equality legislation relevant to today's society' the DRC argued that:
Clear, comprehensive and effective new equality legislation is vitally needed to inject new momentum into the battle for real equality for disabled people, older people, women and men, transgender people, lesbians and gay men and people of different religious beliefs.
What does the green paper propose?
The green paper makes a series of detailed proposals to harmonise and simplify the law. In particular, it proposes to unify the definitions of indirect discrimination, to introduce the concept of genuine occupational requirement for all the prohibited grounds, except disability, and to adopt the same objective justification test for all the existing indirect discrimination provisions. JUSTICE considers that the wording of these provisions should mirror as closely as possible the EC Directive provisions that they are implementing.
The green paper is also consulting on extending anti discrimination provisions in respect of age in relation to access to goods, facilities and services. Legislation to counter such age discrimination has a vital role to play in establishing a fair and equal society. Substantial evidence exists of the inequalities experienced by older people whether as patients in receipt of health care or social services, as volunteers or in respect of insurance and other financial services. JUSTICE considers that age discrimination beyond the workplace should be prohibited by legislation, although the way in which this should be done will need careful consideration. Consultation with affected groups and service providers will be necessary in order to prevent unintended consequences and the erosion of all currently permitted forms of positive action.
Then there are the proposals to streamline provisions in a way which may cause them to lose some of their strength. Thus the green paper proposes a single public sector equality duty for at least gender, race and disability and possibly for sexual orientation, religion or belief and age as well. However, the price for this simplification of equality duties appears to be an overall substantial dilution of the existing duties. This is a proposal that has drawn universal condemnation from the existing three Commissions. JUSTICE would want to see a general duty that is robust, which covers all the prohibited grounds but recognises areas of differentiation. In particular, the duties should cover gender, trans-gender, pregnancy and maternity, race, disability, religion or belief, sexual orientation and age.
JUSTICE considers that it is important that any new equality law is able to take account of the needs of the whole person, not just one aspect of their identity, hence the law should be able to deal with problems of multiple discrimination. Multiple discrimination occurs when someone experiences discrimination on more than one ground, for instance, by being treated less favourably not only on grounds of age but also because of their sexual orientation. Provisions to deal with multiple or intersectional discrimination are dismissed with the assertion 'we do not have any evidence that in practice people are losing or failing to bring cases because they involve more than one protected ground'. This has not stopped them from using the concept of multiple discrimination to justify the setting up of the Commission for Equality and Human Rights or, in the green paper, the need for a single equality duty. The suggestion that more evidence is needed has led the House of Commons Communities and Local Government Committee to observe 'we urge the Government to recognise the inherent difficulty in amassing evidence of actions that have not been taken.'1
The green paper also seeks to consult on equal pay, positive action (referred to as 'balancing measures'), harassment, gender re-assignment and on effective dispute resolution. Each one a significant area meriting careful consideration on its own.
What has been left out of the green paper?
The most significant omission is the exclusion of a clear strong statement of purpose for the new Equality Act. JUSTICE considers that a statement of purpose at the beginning of any single Equality Act would be beneficial and give the Act as a whole an overall coherence. It would set out the objectives and goals of the Act and thus provide guidance to those seeking to interpret the Act, both courts and tribunals and employers and service providers.
Much work still needs to be done if we are to convince the government to put in place a single Equality Act fit for the 21st century.
Where can I find out more?
1 Sixth Report of Session 2006-07, HC 468 at para 34