Geraldine Scullion, editor of Briefings, summarises the presentations and issues discussed at the DLA’s annual conference.
Equality rights - where next?
The DLA’s October 2015 conference, hosted by Baker & McKenzie, celebrated the 50th anniversary of the first Race Relations Act (RRA), the 40th anniversary of the Sex Discrimination Act (SDA) and the 20th anniversary of the first Disability Discrimination Act (DDA) as well as the 20th anniversary of the Discrimination Law Association. Chaired by Catherine Rayner, chair of the DLA executive committee, the conference provided the opportunity for discrimination practitioners to remember past struggles, celebrate hard won rights and to look ahead to how we retain, develop and expand those rights.
The DLA was delighted to welcome Judge Brian Doyle, President of the Employment Tribunals of England and Wales who gave the keynote address on the anniversaries of the equality laws addressing a range of issues and concerns for discrimination law practitioners.
40th anniversary of the Sex Discrimination Act 1975
Jenny Earle Director of the Prison Reform Trust’s Care not Custody programme, celebrated the achievements of the campaigning ‘ROWdy’ women who would not take no for an answer when fighting for equality.
Pointing out the huge inequality that still persists, Jenny noted that lack of universal childcare for women is still an issue; that two women a week are murdered in the UK by their male partners; more than half (53%) of women in prison report having experienced emotional, physical or sexual abuse as a child, compared to 27% of men, and that it is women, rather than men, who suffer the bulk of welfare cuts and poverty in old age. Referring to a slogan in the 1970s campaign for equal employment rights - ‘disaggregate now!’ - Jenny noted some persisting employment related issues such as unequal pay, the gender pay gap, women’s continuing lack of independent finances, their poverty on motherhood, and over-representation in low paid jobs in sectors such as health and social care.
She said that activists must take the long view, recognising that it is less than 100 years since women were entitled to vote and only 40 years since the SDA became law. She recalled the character assassination unleashed by the press on Margherita Rendel, the first women to bring a claim under the SDA after she was denied promotion. Although women who challenge the establishment are still stereotyped and must be prepared for the long haul, she acknowledged that blatant discrimination is now less common.
For Jenny, the gender equality duty was the landmark step forward and one of the most important advances in promoting equality for women; it is a powerful tool and one which has been successfully used by her organisation, the Prison Reform Trust, to successfully scrutinise and hold authorities to account.
50th anniversary of the Race Relations Act 1965
Robin Allen QC, head of Cloisters Chambers, outlined the long history of race equality legislation, which dated from Britain’s first steps in writing anti-discrimination law in colonial India and the protection for equal pay for ‘persons of colour’ contained in the nineteenth century Navy Acts, to the first cases where success was dampened by the award of derisory damages. He reviewed the many equality acts since and urged the audience to focus on what we can do better. Dealing with the changing demographic in the UK is one of the biggest challenges we face, he said. Asked about rising support for the UK Independence Party, Robin argued that the current government’s purported support for equality rights - such as recent initiatives around increasing representation of women on boards - is a counter pose to its detestation of human rights which it characterises as bad, external to England, driven by Europe etc. This stance must be faced down, he said.
20th anniversary of the Disability Discrimination Act 1995
Professor Anna Lawson, professor of law and director of the Interdisciplinary Centre for Disability Studies, Leeds University, spoke about the long lead up to the DDA which, although only 20 years old, was grounded in analysis and evidence gathering work done in the 1980s by many campaigning groups and individuals including the late Caroline Gooding and others, many of them unsung heroes. She quoted Lord Lester of Herne Hill QC who said the DDA - which the government of the day promoted as an alternative to a much stronger act - had as many holes as a ‘particularly leaky colander’. Some holes, including the requirement on the claimant to prove they have a disability, the definition of disability which is incompatible with Article 1 UNCRPD, the conditions that are specifically excluded from constituting a disability, among others, still persist.
Anna celebrated the anticipatory duty as a creative step in the EA which helps to push forward systemic change; she noted that Japan, Norway and Sweden were among several countries attracted by the UK’s anticipatory duty. However, she also highlighted difficulties with implementation and enforcement, including legal aid cuts and tribunal fees which, an October 2015 EHRC report1 argues, have had a disproportionate impact on disabled people.
The key issues to be developed, she concluded, are enforcement, access to advice and maintaining systemic change; ‘Law that is not enforced is not observed; law that is not observed brings all law into disrepute’ she said.
Developments in discrimination law: where have we come from and where are we going?
Karon Monaghan QC, Matrix Chambers, argued that where we are going is unclear and depends on political choices made by government, in particular on continued membership of the EU and to an extent, the repeal of the Human Rights Act 1998 (HRA). Karon highlighted the achievement of the enactment of the PSED which, although subject to some row-back by the courts, remains a powerful basis for lobbying on equality issues and challenging the more egregious actions of public authorities.
It is no surprise that many of this year’s key equality cases challenged austerity measures as many of the cuts to the funding of services and to local authorities have most profoundly affected the poor including women, disabled people and ethnic minorities. Karon highlighted a number of interesting and important cases dealing with claims against state bodies, where the courts have held that economic or social policies which had a discriminatory impact were justified unless it could be shown they were manifestly without reasonable foundation. She also mentioned cases dealing with other economic or social rights which have addressed discrimination on the grounds of ‘immigration status’ under the ECHR, and the meaning of ‘vulnerable’ under the Housing Act 1996. The courts’ approaches to indirect discrimination were also outlined.
Karon concluded her review by addressing possible threats to the UK’s key equality law sources, namely the EA, the HRA and EU law, including the EU Charter of Fundamental Rights. She considered that, following some changes, the threat to the scope of the EA has receded. The government has stated that it intends to repeal the HRA but even if that happened, a formal link to the European Court of Human Rights continues to exist so long as the UK is a member of the Council of Europe. EU directives and the EU Charter are binding on the UK - for the moment - and the impact of the latter has increased and, she argued, may become the source of ‘our most compelling equality rights’ in areas such as employment and occupation, and potentially in non-employment matters.
However, as continuing UK membership of the EU is itself under threat, the future of equality rights protection is precarious. Karon rounded up her presentation warning the audience that it is wishful thinking for practitioners to believe that the common law would fill any gap left by the repeal of the HRA or an exit from the EU.
The afternoon break-out sessions enabled participants to discuss in greater detail developments in, among others, the public sector equality duty, disability and race discrimination law, discrimination law in the workplace, and ET procedure. Other break out topics included understanding transgender; taking cases for people with mental health issues, and managing challenges of faith-based discrimination. Sincere thanks are due to the experts who facilitated these sessions.
Panel discussion: where do we go from here?
The panel discussion was fascinating. Chaired by Robin Allen QC, the panellists included Julie Bishop, Law Centres Network, Omar Khan, Runnymede Trust, Wilf Sullivan, TUC Race Equality Officer and Jemima Olchawski, Head of Policy and Insight at the Fawcett Society.
The panel came to the conclusion that using the law to further equality rights should be a last resort. To improve equality, there is a need to engage politically and from the grassroots. Although the government has recently suggested policies to further equality, there is a danger that it is interested in a public relation’s exercise around equality but not in the rights themselves. There is an urgent need to stop the regression of equality legislation, and fight for its enforcement and advancement.