© 2001 by Industrial Law Society
Equality: A New Generation?
1 Oxford
The new millennium has brought with it a surge of new legal activity in combating discrimination. At EU level, two new directives were adopted in the year 2000: the first concerning discrimination on grounds of racial or ethnic origin; and the second extending the principle of equal treatment to prevent discrimination on grounds of age, disability, religion and sexual orientation. In Britain, the damning indictment by the MacPherson Commission of institutional racism in the Metropolitan police forces prompted new statutory activity in the form of the Race Relations Amendment Act 2000. This breaks important new ground in including a positive legal duty on public authorities to promote racial equality. At the same time, the equality guarantee contained in Article 14 of the European Convention of Human Rights came into effect in Britain in October 2000 with the Human Rights Act 1998. Nor does the activity stop there. In addition, the European Convention has itself been augmented by the new Protocol 12, which for the first time provides a free-standing equality guarantee.
Is the result simply to create a bewildering array of equality provisions which confound more than they correct? Or do these new provisions constitute the start of a new era for equality law? The paper begins by examining contemporary racism and other forms of discrimination in Europe; and considers why it has taken so long for the EU to accept responsibility for legislating in this area. It also considers the weaknesses of existing measures within the UK. Part 3 outlines the new legislative provisions, considering in particular the hierarchy of protection established in the EU, with race given the widest reach, and disability, age, religion and sexual orientation the narrowest. The disturbing exclusion of nationality is highlighted and the resulting reliance on a concept of ‘group’ based on fixed and exclusive attributes is critically assessed. The new UK legislation is briefly described, with particular emphasis on the significance both of extending the prohibition on discrimination to all public authorities' functions and the additional imposition of positive obligations on such authorities to promote race equality.
Part 4 assesses the concepts of equality utilised, considering first the traditional justification of equality laws on grounds that they further the liberal goals of State neutrality, individualism, and the promotion of autonomy; and then examining alternative values such as dignity, restitution, redistribution and democratic participation. The approach in the new provision to grounds of discrimination and the definitions of discrimination and equality are analysed in the light of these concepts. Finally, the paper turns to the most innovative provision: the positive duty to promote equality, and considers whether this ‘new generation’ equality right solves some of the difficulties previously identified. The paper concludes by welcoming the belated EU assumption of responsibility for ensuring that Member States take measures to combat discrimination on grounds of race, ethnic origin, religion, age, disability and sexual orientation, but noting that the method of categorisation of groups and the definitions of discrimination are problematic. So far as the UK is concerned, the imposition of a positive duty within UK race discrimination legislation represents a significant reinforcement of existing attempts to create a new generation of equality laws. Although the details of this duty remain disturbingly vague, and its aims remain unformulated, this is certainly the direction of the future.
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