Geraldine Scullion, editor of Briefings, summarises the presentations and issues discussed at the DLA’s annual conference.
Responding to the conference theme - Discrimination and Economic Inequality: two faces of disadvantage - the speakers considered the issue from different perspectives; the general consensus was that legislative and policy changes are required to halt growing inequalities in the UK.
Barbara Cohen, chair of the DLA, opened the morning session by quoting from the Credit Suisse annual global wealth report which showed that in the UK the top 10% own 54.1% of the total wealth and that the UK is the only G7 country to have greater inequality in 2014 than in 2000. She also referred to statistics showing an overlap between the groups that are disadvantaged because of aspects of their personal identity and those that live in the most severe poverty.
The conference theme was timely and appropriate; a number of speakers referred to Alan Milburn’s second State of the Nation report as head of the government’s Social Mobility and Child Poverty Commission which had been released that day. This report highlights the real danger of Britain becoming a society permanently divided between the well off and the poor. The report accuses all the parties of paying lip service to the government’s target to eradicate child poverty by 2020, warning that it cannot possibly be met and will leave an estimated 3.5 million children in poverty.
The two keynote speakers were asked to consider whether you can tackle either discrimination or economic inequality without also tackling the other. The first keynote speaker, Sarah Veale, head of the TUC’s Equality and Employment Rights Department, proposed that ending discrimination would not of itself lead to economic equality, as equality could not be achieved without a fair outcome. For her the critical issue is fairness; for example, to achieve equal pay for women, men’s pay could be reduced yet this would not be fair. She reviewed the use of discrimination as a tool for economic and social regulation over the decades and referred to structural discrimination in the economy as it affects women or disabled workers. She concluded that discrimination couldn’t be eliminated without also addressing economic inequality if the aim is to create a fair society where an individual’s protected characteristic will not be determinative of their economic status. She called on participants to support the development of the concept of a public sector duty to reduce inequalities of outcome which result from socio-economic disadvantage as anticipated by s1 of the Equality Act 2010 (EA).
The second keynote speaker, Colm O’Cinneide, Reader in Law at University College, London, considered whether discrimination and economic inequality were two sides of the same coin. His view was that the overlap between socio-economic disadvantage and group exclusion – gender, ethnicity, disabled status etc. - is considerable, especially when lack of social capital and precariousness are taken into account. While discrimination law is well developed, its impact on patterns of economic inequality is limited. He concluded that although there is some protection for socio-economic rights under the ECHR, issues of economic inequality are generally viewed as falling outside the scope of UK law.
To address this gap, he proposed a number of ideas for discussion. These included changes in the law or the development of policy tools such as monitoring on the basis of social class. Possible changes in the law included the implementation of s1 EA, ‘stretching’ the scope of protection under the EU Social Charter or extending article 14 ECHR to cover socio-economic status as a protected ground.
The three speakers during the morning plenary session, while focusing on discrimination law issues, also incorporated reference to economic barriers to equality.
Karon Monaghan QC brought the audience up-to-date with her review of recent legislative changes and case law which have provided both ‘gains and losses’, highlighting some judgments which have reiterated ‘basic’ principles, and others where conflicting views, e.g. between religious freedoms and anti-discrimination principles, collide. She commented on judgments in cases involving challenges to decisions on welfare benefits and fees at tribunals and expressed the hope that appeals and further hearings on these topics will achieve improved outcomes.
Robin Allen QC framed his talk around the increasing international political concern about the effects of economic inequality on growth and stability. The recent statements of Janet Yellan, Chair of the US Federal Reserve, Christine Lagarde of the International Monetary Fund, the Pope, and President Obama all highlight the need to tackle economic inequality if economic well-being is to be achieved. He reviewed some of the judgments of the ECtHR and the CJEU in equality cases, including cases where economic inequality was an issue. As the ECtHR has allowed states a large margin of appreciation to justify decisions on economic grounds, he warned that this could mean limited success in any future challenges against the UK. Cases at the CJEU have reiterated the principle that policies or practices which have ‘aims of a purely economic nature cannot constitute pressing reasons of public interest justifying a restriction of a fundamental freedom’. However, despite this, the CJEU has accepted, in the case of Specht v Land Berlin for example, that budgetary and administrative considerations can justify age discrimination.
Stephanie Harrison QC highlighted the UK’s system of immigration control which has ‘institutionalised distinctions, exclusions, restrictions and preference based on national origin that are so all-pervasive that they create a virtual apartheid in the economic and social life’ of individuals who have no legal status or permanent right of residence in the UK. Not only does this control system discriminate against people of poorer backgrounds but it is now government policy that a certain level of income is a central requisite for ‘integration’. While such distinctions in treatment based on immigration status are not prohibited, she argued that the implementation of the controls can be in fact based on ‘racial origin, colour and religion which are likely to be the trigger factor(s) for suspicion, investigation and hostile action’ - and if these factors form part of the decision-making process this can and ought to be challenged under domestic and ECHR law.
The afternoon breakout sessions gave the practitioner audience valuable opportunities to raise questions and thrash out particular issues with the experts. Topics included developments in discrimination law in the workplace and in disability discrimination law; age discrimination in employment, services and public functions; harassment claims at the ET or county court: changes in judicial review: updates on public sector equality duty cases; practical advice on winning cases at the ET; and positive action under the EA.
The conference concluded with a stimulating panel discussion, chaired by Robin Allen, in which panel members presented their particular views on the connection between discrimination and economic inequality and how the two issues can be tackled most effectively. Panel member Gloria Mills, CBE, with many years as a senior trade union officer, argued that social class is the major contributor to economic and social inequality; she called for more investment in public services, collective bargaining, access to decent jobs and pay as the tools to address the gulf between the poor and those with inherited wealth and privileges. Acknowledging a crisis of confidence and leadership in the Left, she argued strongly for the Trade Union movement and other leaders to find a narrative that resonates with the public - and proposed that equality could form the basis of that narrative.
Panel member Joy Warmington, CEO of brap (a Birmingham based charity which aims to help people, communities, and the organisations that serve them turn equality into reality) challenged participants to acknowledge prejudice within themselves and their organisations; she argued that the tools to address discrimination are crude and despite statutory equality duties and impact assessment tools, discrimination persists. In her view, the development of the EA had led to disharmony as different groups have competed for attention; finding ways to work together to mobilise a different response was critical.
Panel member Professor Richard Wilkinson, co-author of the Spirit Level and co-founder of the Equality Trust, agreed that inequality is inextricably linked to prejudice and discrimination. He referred to the prevalence in unequal societies of poor physical and mental health, violence, teenage births, bullying among children, status competition etc. He also agreed that powerful social movements such as the trade union movement or the women’s movement have been critical in the past and our chances of improving equality in the future also depend on powerful social movements. He stressed the importance of training and educating others on the reality and consequences of inequality.
The DLA expressed its great appreciation to the keynote speakers, chairs, panellists and the 10 experts who facilitated the afternoon breakout sessions. Thanks were also given to Baker and McKenzie which hosted the conference and supported the DLA administrator Chris Atkinson in making the conference such a smoothly run event. Thanks were also extended to all of the participants for their contribution to making the conference an invaluable day of discussion and debate on such a critical topic.