Fumbling Towards Coherence: The Slow Evolution of Equality and Anti-Discrimination Law in Britain
University College London - Faculty of Laws
Northern Ireland Legal Quarterly, Forthcoming
Due to a lack of consensus as to underlying principles, the development of equality and anti-discrimination law in Britain has taken place in fits and starts. When change occurs, it often tends to be reactive in nature. Legislation and new policies are usually introduced in response to events, or to fill a sufficiently embarrassing gap in the legislation, or to comply with the requirements of EC law. This disjointed approach has persisted since the introduction of the earliest forms of anti-discrimination legislation in the 1960s, and has produced a complex hybrid of equality principles embedded in a patchwork quilt of anti-discrimination legislation and case-law.
Since 1995, anti-discrimination protection has been extended to the "new" grounds of disability, sexual orientation, religion and (imminently) age, while the scope of existing protection in the areas of race and gender has been extended. This has been paralleled by considerable shifts in judicial approaches to equality issues, with some development of common law equality principles and a move towards the purposive interpretation of anti-discrimination legislation. These developments have been accompanied by the introduction of positive equality duties, attempts to introduce mainstreaming initiatives, the coming into force of the Human Rights Act and the establishment of a single Commission for Equality and Human Rights.
This transformation of British equality law has not been immune from its recurring defects, exemplified in particular by the piecemeal, stumbling and reactive manner in which these reforms have been introduced. However, it can be argued that the cumulative effect of these changes has been to establish the bare bones of a coherent framework of equality and anti-discrimination law. However, the conceptual uncertainties noted by McCrudden remain. Fundamental questions as to how this evolving legal framework should be further developed remain unresolved.
Part One of this paper examines the underlying conceptual uncertainties that continue to afflict British equality law and policy. Part Two will assess the scope and effectiveness of the recent extension of anti-discrimination legislation in Britain, while Part Three will outline how equality and anti-discrimination norms are becoming "constitutionalized" in British public law. Part Four will then look at attempts to require public and private authorities to take proactive action to eliminate patterns of inequality, and how conceptual uncertainties persist as to the appropriate scope and direction to be given to "transformative" equality measures. British equality law is fumbling towards greater coherence, consistency and clarity, but real obstacles to achieving full coherence persist.
Number of Pages in PDF File: 39
Keywords: Equality, Anti-discrimination
JEL Classification: J7, K10, K31Accepted Paper Series
Date posted: January 19, 2006
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