Abstract
I am honoured to have been asked to write the foreword to this special edition of the International Journal of Discrimination and the Law. As the editorial notes, this collection of papers emerged out of a conference on the theme of The Equality Act 2010: Five Years On organized in June 2015 as a collaboration between the Forum for Research into Equality and Diversity (University of Chester) and the School of Law and Social Justice (University of Liverpool). It was a pleasure to participate in this event: the standard of papers was uniformly excellent and thought-provoking, as evidenced by the high quality of those which have been included in this special edition. Furthermore, the conference offered an invaluable opportunity to reflect on the Equality Act 2010 from the vantage point of half a decade after its enactment and to consider how UK equality law might develop in the years to come.
Along with Professor Bob Hepple QC, I was asked to contribute a keynote address at the conference. My talk focused on how British law in this context might evolve in the future, and the challenges it would face in this regard. I made the following points, reproduced here in summary form by way of a preamble to the papers that follow.
The 2010 Act can, if perhaps a little controversially, be described as a quasi-constitutional statute. It sets out to regulate the behaviour of both private and public actors, with a view to protecting what is now regarded as a fundamental human right, namely the right to non-discrimination – meaning that in effect it has become an important element of the current set of norms that shape the fundamentals of the UK legal system(s). Furthermore, the provisions of the 2010 Act are backstopped by the requirements of EU law and the European Convention on Human Rights, as well as elements of the common law. They also attract support from across the political mainstream, and unlike the Human Rights Act 1998, are rarely subject to direct political assault. Similar laws have been enacted in many other democratic states: as Khaitan has suggested, discrimination law has become a ‘mainstay of liberal democratic governance’ and a ‘marker of a civilised society’. 1 Furthermore, background shifts in the socio-economic, cultural and demographic make-up of the United Kingdom have given greater salience to the policy objectives underlying the 2010 Act, even if certain currents of popular opinion complicate the picture: hostility towards ‘migrants’ and other unpopular minority groups remains strong, but strong pressure also exists on the United Kingdom to embrace diversity as a function of its place within a globalizing world.
Having said all of that, it is important to acknowledge that ‘formal’ approaches to equality are now generally uncontroversial, but the substantive and transformative dimensions of equality law remain seriously contested. Furthermore, whilst the main provisions of the 2010 Act itself are generally insulated against political attack, the reinforcement it has historically received from human rights and EU law may not be available in the future. The landscape of equality concerns is also changing: new variegated identities are emerging, whilst historical lines of fracture/disadvantage are splintering and fragmenting – meaning that forms of discriminatory behaviour are also mutating. (For example, discrimination linked to religion appears to have become a more prominent social phenomenon than hitherto.) In addition, the post-war welfare state has been seriously eroded, including in particular its legal dimension. This has potentially far-reaching ramifications for equality law; for example, the shrunken scope of the activities undertaken by public authorities in fields such as housing and education limits the impact of the public sector equality duty introduced by section 149 of the 2010 Act, whilst the reduction in legal aid is likely to have a particular impact on vulnerable groups such as women and disabled persons.
All of these factors generate what might be described as ‘internal challenges’ for equality law, that is, challenges relating to the effective functioning of its established framework of legal norms. Ensuring adequate access to justice for victims of discrimination will be difficult, especially with the Equality and Human Rights Commission experiencing extensive budget cuts. Issues of intersectionality and multiple discrimination will also pose problems – as social identities grow more complex and multi-faceted, can equality law keep pace? The highly technical and detailed nature of equality legislation also gives rise to some difficult issues. Can equality law avoid becoming a technocratic mode of process regulation? Can it strike an effective balance between procedure and substance, especially when it comes to the implementation of the positive equality duty? There are underlying normative issues that will need to be engaged with as well. How transformative can/should equality law be? How should courts interpret and apply its provisions, especially in those situations where the legislative text is ambiguous on important matters of substance? Should different approaches be applied across the different non-discrimination grounds, or should the emphasis be on consistency in this regard?
Equality law also, however, faces ‘external challenges’, that is, challenges to the normative legitimacy of its current legal framework, which call its adequacy and suitability into question. To start with, equality law represents a partial and limited response to social patterns of individual and group disadvantage: for example, discrimination based on immigration or socio-economic status will in general fall outside its scope of concern. Given this, does equality law really engage with core causal actors of social inequality in contemporary society? Somek has argued equality law is entirely consistent with neo-liberalism and lacks real redistributive impact because it ultimately is subservient to the demands of market efficiency. 2 His argument is exaggerated but should not be dismissed out of hand. Furthermore, other issues exist. Is equality law responsive enough to the needs to genuinely disadvantaged groups within the scope of its ‘protectorate’, or does it really only benefit relatively privileged groups who are well placed to invoke its provisions? Is the extent of the restrictions it imposes on the freedom of action of employers, service providers and public authorities justified by the good it achieves? Has it become divorced from its normative underpinnings? Can it survive if the wider human rights project becomes politically unpalatable, or if the EU train that has historically pulled the carriages of UK equality law ceases to run?
To summarize, UK equality law is oddly positioned. It has acquired quasi-constitutional status but faces a series of challenges that have the potential to destabilize its functioning and leave it open to the charge that it lacks normative legitimacy. The 2010 Act was a remarkable achievement. But equality law still finds itself living in interesting times – in the proverbial Chinese sense of that term. In different ways, all the papers contained in this special edition grapple with these tensions, in innovative and incisive ways.
In concluding on that note, I would like to add a final coda. Professor Hepple passed away soon after the Chester conference, as noted in the introduction to this special edition. This represents a great loss. Bob made an extraordinary contribution to the intellectual development of equality law and was an inspiration to myself and so many others working in this and related fields. He was a giant, and we are all the poorer for his passing.