Equality and Diversity Forum Seminar Series

Seminar 3 – 9th January 2006

DEALING WITH DIFFERENCE IN EQUALITY LAW (How should we address diversity in equality law?) ROBIN ALLEN QC 1 CLOISTERS

INTRODUCTION

1. I should like to start by thanking the Forum for inviting me to contribute to this timely Seminar Series to discuss the very difficult question of how to address difference through equality law. It is a great pleasure to be co- contributing with Patti Bregman, whose views on equality law I always find most stimulating! 2. Caroline Gooding2 has asked me to address three questions: How can equality law be framed to reflect the increased focus on diversity alongside equality? a. How can the law shift from its predominant focus on treating everyone the same to an approach which also respects the need for different treatment at times? b. How do the concepts of ‘reasonable adjustment’ and indirect discrimination fit in here? 3. With these questions I shall try to answer a fourth related question. d. How do we know what differences we should address?

4. All these questions fit under the overarching rhetorical question: ‘How should we address diversity in equality law?’ which I have posed as a sub- title to this paper.

5. I shall not deal with these questions in exactly the order that they have been posed, and I shall start with some comments on the extent to which there is an increased focus on diversity.

2005 –A TURNING POINT FOR DIVERSITY

6. Last year marked a turning point for diversity as a value to be respected in a modern society, when Parliament addressed it explicitly, for the first time, in relation to judicial appointments.

1 Head of Cloisters Chambers; Professional Address: Cloisters, Temple, 1 Pump Court, London EC4Y 7AA. Tel: + 44 (0) 20 7827 4000. Email [email protected] Website www.cloisters.com 2 I would like specially to thank Caroline Gooding, (Special Advisor and Director at the Disability Rights Commission) for inviting me to give this paper and for inviting me to workshops organised by the Disability Rights Commission along similar lines.

1 7. Canada, as Patti will well know, now has a female Chief Justice of its Supreme Court. Moreover four of the nine judges of that court are female. By contrast we, in the United Kingdom, still have an essentially white, male and largely able-bodied judiciary.3

8. However in 2005, Parliament passed the Constitutional Reform Act, thereby creating a new Judicial Appointments Commission which will be required, when it starts work later this year, to make appointments (or recommendations for appointments) to the judiciary having regard “to the need to encourage diversity in the range of persons available for selection for appointments.”4

9. This welcome change forms a very public statement of the increased realisation that diversity is an explicitly desirable policy goal. But it is so far a unique provision and the detail on this general aim is yet to be painted in. No other body and no private employer is expressly required to recruit on the same basis. 10.The 2005 Act limits the enquiry to the range of persons “available” for selection for appointment, so it is unlikely to make much difference in relation to the appointment of judges from some parts of modern diverse Britain. 11.I do not expect the appointment to the Court of Appeal of a Gypsy or someone under the age of 30 anytime soon. But if diversity in relation to selections from the available pool is explicitly required then it is implicit that the available pool should also reflect diversity. 12.Moreover any judge who questions the relevance of reflecting the diversity of modern Britain in the construction of a statute can be politely referred to this section with the additional comment that if it is important in the selection of judges it is likely to be important in the application of the law.

13.Of course legal turning points such as this do not come out of nowhere. Pressure builds up for such a change which eventually moves into mainstream political discourse. The EDF has played an important part in that, as have many others, academics, commentators, lawyers and equality activists. So while the timing of this provision of the Constitutional Reform Act seems entirely natural to me, and I suspect to you, I can assure you, that it has been seen as controversial to many judges.5

14.The Government’s decision to set up the Equality Review6 and the Discrimination Law Review,7 to whose work this series aims to contribute, is another sign of this increased focus on diversity. The work of both these

3 This is in part explained by the historical lack of diversity in those who trained as solicitors and barristers. To their credit the Department of Constitutional Affairs have been working assiduously to change this perspective. For the up-to-date figures see http://www.dca.gov.uk/judicial/ja-arep2004/parttwo.htm#apptcourt 4 See section 64 of the Constitutional Reform Act 2005 which imposes this obligation on the new Judicial Appointments Commission. 5 The judges have always been concerned that the proposals for the Constitutional Reform Bill would lead to unacceptable “political” interference in the selection of judges and the lowering of standards. This debate lead to the so called “Concordat” between the judges council and the Department of Constitutional Affairs which sought to entrench an agreement as to the new settlement: see http://www.dca.gov.uk/concordat/concord_wales.htm 6 This is set to investigate the causes of persistent discrimination and inequality in British society: www.theequalitiesreview.org.uk/ 7 This is considering the opportunities for creating a clearer and more streamlined equality legislation framework: www.womenandequalityunit.gov.uk/dlr/

2 Reviews will be important for the development of law and practice in this area. 8 Dealing with difference in an equality context will be vital to both reviews.

COMPLEXITY AND EFFECTIVENESS

15.For many reasons I consider the tasks for these Reviews are not at all easy. One reason has been and remains of particular interest to me and is relevant to this increased focus on diversity. I pointed out some time ago that the combination of the new equality laws that were derived from Article 13 EC9 and the human rights laws contained in the Human Rights Act 1998 10, would lead, inexorably to a new and hitherto unencountered legal complexity. 11 I believe that this is a second reason why we are now at a turning point.

16.This complexity is a direct consequence of the need for different rights to be reconciled and differences between individuals to be specifically addressed. We must never forget that these fundamental rights, whether derived from equality law or human rights law, have to be applied by ordinary people, that is to say non-lawyers, in literally thousands of decisions, on a daily basis, in the workplace, in the distribution of social goods such as housing and education, and in decisions about the provision of facilities and services. 17.However I believe that it is beginning to be clear to a very broad range of policy makers, forums and others interested in this area, that the current system is terribly complicated and thus unlikely to be a good agent for change. 18.What worries me particularly is that the effectiveness of these laws is in inverse proportion to their complexity. So we and these Reviews must aim with resolute determination for simplification. Any change which adds to the

8 I have long been aware of the need for a consolidated and up to date equality code, and so I hope that what I have to say will be of some use to both Reviews as well as being of interest to you. See my paper ‘A Single Equality Act: Patchwork or Promise?’ for the joint JUSTICE, National Aids Trust, and Trades Union Congress Conference ‘Equal Protection - Working For A Single Equality Act’, 12 May 2003, at www.justice.org.uk/images/pdfs/patchwork.pdf 9 This Article, introduced by the Amsterdam Treaty (and now amended by the Treaty of Nice), is the source power for the Race Directive 2000/43/EC, and the Framework Employment Equality Directive 2000/78/EC. It says that “…the Council…may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” These Directives have been the source of the obligations on the United Kingdom which have lead to the extension of the protections into these areas. 10 Particularly Articles 9 and 14 respectively concerning religion and belief and non-discrimination. 11 Five years ago, I gave a paper on this topic to the W. G. Hart Legal Workshop organised by Professor Hugh Collins in which I suggested that this complexity would be, of itself, a feature that would have to be addressed: see Allen R. ‘The Contribution of International and Transnational Regulation in the Search for Substantive Equality in the Workplace: Clarity or Confusion”, at Chapter 7 of ‘Legal Regulation of the Employment Relation (W. G. Hart Legal Workshop)’ edited by Hugh Collins (Editor), Kluwer London 2001, ISBN: 9041198121 In that paper I drew on my experience as a lawyer whose work has almost completely coincided with the life of the Sex Discrimination and Race Relations Acts. I emphasised the difficulties that I had experienced which arose from a mismatch of the understanding by judges and tribunals of the purpose of that legislation with the actual goals that Parliament and European Community had. I suggested that past experience showed that the introduction of a new range of legal equality rights was therefore, as likely to cause confusion, as to establish clarity. I still consider that the risk of confusion rather than clarity is very serious indeed.

3 complexity should come with a health warning – it probably won’t work very well!

THE DEVELOPMENT OF PROACTIVE MEASURES FOR EQUAL OPPORTUNITY IN A DIVERSE SOCIETY

19.So far, in the United Kingdom, and in Europe, this complexity has barely been addressed at the legislative level, but this complexity will have to be addressed legislatively and this will be even more important as we try to put diversity centre stage in equality work. Moreover we must recognise that from a legal perspective, this ‘increased focus on diversity’ as Caroline puts it is still very amorphous.

20.Politically it is driven by a wider understanding of the continuing inequality of outcomes and partly by the developing realisation that each thread in the tapestry of our society is of interest. One of the best places to view the legal importance of this tapestry is in a key provision, hammered out in the Good Friday Agreement and later incorporated into the Northern Ireland Act 1998.12

21.Section 75(1) of that Act says so far as relevant that

A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity—

(a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; (b) between men and women generally; (c) between persons with a disability and persons without; and (d) between persons with dependants and persons without.

22.One can see immediately that this section sets out, explicitly, no less than 9 different ways in which public authorities should consider the diversity of Northern Ireland’s society, though it does not use the term “diversity” preferring to direct attention to the key grounds where there is known to be a lack of equal opportunity.

23.It is as yet unresolved to what extent this obligation can be enforced by judicial review13 but it has lead to some very extensive guidance from the Equality Commission for Northern Ireland and there is a system for enforcing this guidance.14 Thus that Commission in it’s Guide to section 75 states:

12 C. McCrudden, Mainstreaming Equality in the Governance of Northern Ireland, Fordham International Law Journal, Volume 22, April 1999, Number 4, 1696 at pages 1742-1743. 13 See Neill’s Application [2005] NIQB 66 in which Girvan J. decided in the Belfast High Court that it could not He held that the provisions of schedule 9 to the 1998 Act, which enabled a complaint to be made to the Equality Commission for Northern Ireland, provided an exclusive remedy, but this part of his judgment is under appeal and is expected to be considered by the Northern Ireland Court of Appeal in February 2006. See http://www.courtsni.gov.uk/NR/rdonlyres/5FDBEFAC-4A55-409A-B9BC- 3AF67FFD115D/0/j_j_GIRC5372.htm 14 Which has special obligations under Schedule 9 to the Northern Ireland Act 1998.

4 The promotion of Equality of Opportunity entails more than the elimination of discrimination. It requires proactive measures to be taken to secure equality of opportunity between the categories identified under Section 75.15 (Emphasis added)

24.The Northern Ireland legislation obviously has some of its roots in the obligation to promote equality of opportunity in section 71 the Race Relations Act 1976, especially as amended by the Race Relations Amendment Act 2000 after the Lawrence enquiry. However it goes much further since that obligation is concerned solely with the diversity of different racial groups. 25.The Constitutional Reform Act can therefore be seen as a further step precisely because it does not list the grounds to which regard is to be had when addressing diversity. It was in this respect truly novel; the range of diversity is at large.

26.If you search the statute book back from the Constitutional Reform Act, for the use of the word “diversity” you will find that in the modern era 16 its use took off from the mid 1980s in a series of Acts principally dealing with housing, education and broadcasting, or bio-diversity.

27.In these Acts its use was essentially to assert the value of greater or more diverse choices. It was not really used to reflect a greater understanding of the diversity of society which required to be reflected in the make up of its institutions. Of course the two are connected and it was inevitable that a consideration of the importance of choice to a more mixed society would become increasingly important.

28.It was not until 2002 that ‘cultural diversity’ was first mentioned in a statute,17 but I believe that we shall hear more of this before long following the agreement on a new Convention on the protection and promotion of the diversity of cultural expressions by the General Conference of UNESCO, in October last year.18

29.So while there undoubtedly is an increasing focus on diversity in legislation, its connotation in this seminar as an increased focus on rights arising from

15 See “Section 75 of the Northern Ireland Act 1998. Guide to the Statutory Duties. Obligations placed on public authorities to meet the statutory duties in Section 75 of the Northern Ireland Act 1998” published by the Equality Commission for Northern Ireland, February 2005, page 47, para 2.1. 16 It is intriguing that one of the first references to diversity in legislation was not to celebrate it as a value but the very opposite, as a justification for the elimination of difference. The “diversity” between the common law of England and Wales was the explicit reason for the elimination of the latter and use of Welsh in the courts of Wales by the Laws in Wales Act 1535. The prohibition on the use of Welsh remained a running sore for four hundred years until repealed by the first Welsh Language Act . 17 See Schedules 1 and 2 to the Budget (No. 2) Act (Northern Ireland) 2002 . 18 It is perhaps only to be expected that Canada was the first state to sign up to the Convention, though it will not come into effect until 30 states have ratified it: http://portal.unesco.org/culture/en/ev.php- URL_ID=29078&URL_DO=DO_TOPIC&URL_SECTION=201.html

5 the diversity of humankind must be seen as part of a very new discourse aiming to transform asserted equality and social rights into real outcomes through legislative means.

30.This is important since the relative legal novelty of this focus has real consequences. Not only does it mean that the public are unlikely to have a generalised understanding of the idea, but importantly judges, also, will still be casting about for an understanding of it.19 Bluntly put, we are not yet in the territory of legal certainty, let alone widespread acceptance, of the value of diversity in ordinary conversation. It needs to be said explicitly that diversity is really still a social aim rather than a well-defined legal concept.

31.I know only too well that the promotion into society of an idea such as this is not as straight forward as one might hope. It is too often true that conferences about equality of opportunity attract only those already interested in the subject and not those who need to know about it. The resistance to this kind of thinking by people who would not dream of joining an equality and diversity forum must never be under-estimated.20

32.I worked closely with the Home Office as representative of the Bar Council on the Human Rights Task Force and I chaired the publicity sub-committee during the period between the passing of the Human Rights Act 1998 and its coming into force in 2000. The Task Force required every major department of state to make a presentation to it on the implications of the Human Rights Act for its area of work. 33.The publicity sub-committee attempted to disseminate the ideas in the 1998 across the country. Of course our budget was limited and so the work that we did was not particularly deep but during that period it became very clear how much work there was to do in order to entrench in the minds of ordinary people – that is to say non-lawyers! – what this was all about.

34.As you will know the Equality Bill21 does go some way to addressing the importance of promoting this idea, but it does not go very far.22 In stating what the function of the CEHR will be in relation to equality and diversity the Bill equates ‘difference’ with ‘diversity’ and emphasises the importance of both diversity and equality. Thus Clause 8 says:

8 Equality and diversity

(1) The Commission shall, by exercising the powers conferred by this Part— (a) promote understanding of the importance of equality and diversity, (b) encourage good practice in relation to equality and diversity,

19 Though of course they will now need to recognise its more general importance following the Constitutional Reform Act. 20 I learnt that first in the early years of my career explaining and re-explaining what I thought the Sex Discrimination Act 1975 and the Race Relations Act 1976 and the Equal Pay Act 1970 meant, to judicial bodies that started as incredulous at the notion of equality between men and women and incredulous that anyone could possibly unintentionally or subconsciously discriminate against someone not of the same ethnic origin. 21 For the Bill as it is now published see: www.parliament.the-stationery- office.co.uk/pa/cm200506/cmbills/099/2006099.pdf 22 In one sense this is a strength since it will enable the new Commission to express its vision on a relatively blank canvas.

6 (c) promote equality of opportunity, (d) promote awareness and understanding of rights under the equality enactments, (e) enforce the equality enactments, (f) work towards the elimination of unlawful discrimination, and (g) work towards the elimination of unlawful harassment. (2) In subsection (1)— “diversity” means the fact that individuals are different, “equality” means equality between individuals, and “unlawful” is to be construed in accordance with section 35. (3) In promoting equality of opportunity between disabled persons and others, the Commission may, in particular, promote the favourable treatment of disabled persons. …(emphasis added)

35.This clause defines legislatively the ambit of this focus on diversity; it reflects the title of this Forum and its phrasing recognises that though the concepts of equality and diversity are important, that importance is not self evident. It asserts the need to encourage good practice in this area without being explicit as to what this good practice is.

36.This a good start. The task that the CEHR faces in promoting the importance of equality and diversity is of course very exciting and it is sensibly not over prescriptive. However from the very beginning it must expect that ordinary people will ask questions such as: “What does diversity add to equality?”, “Why is equality and diversity so important?” and “Why should I care about diversity?23 We need to have compelling answers to those questions which can be answered simply and effectively.

HOW DO WE KNOW WHAT DIFFERENCES WE SHOULD ADDRESS?

37.It was in thinking about where the CEHR should start its promotional work that I asked my self the additional question which I have added to those from Caroline. It is obvious that not all difference has to be accommodated. 38.Not all the different traditions of our diverse society are equally relevant. Let us think about some of them. We have outlawed female circumcision practiced in North East Africa. We control Halal butchery. We would not tolerate a worker who has come to Britain from Europe continuing to insist that he should be permitted to drive on the right. 39.Some differences are or have been banned but have very recently been reviewed. Last year was a turning point for gender recognition and for civil partnerships. These were matters which required specific legislative change and in the process enabled a more diverse range of people to take an equal stake in British society. 40.But consider other areas where law affects diversity. We have a blasphemy law which protects only Christians. Fortunately it is not enforced. But

23 The Women and Equality Unit has a useful section in which it seeks to answer questions such as these: www.womenandequalityunit.gov.uk.

7 consider a law which is. Why should we continue to insist on laws against bigamy? Most people in Britain would consider that bigamy should be outlawed since it usually involves a deceit on a the second spouse, but the law is just as effective to prevent a Muslim from taking second wife even if no deceit is intended. We do not allow marijuana to be smoked for religious reasons but I believe that on occasion MS sufferers have been allowed to use it.

41.Grappling with problems as to which kinds of diversity are “good” or “acceptable” and which are not is not unique to Britain. Diversity is a key concept across Europe and is leading to similarly difficult questions as member states seek to give effect to the European Commission’s slogan “For diversity, against discrimination”24 or the motto of the European Union “United in Diversity”.25

42.This it was reported recently that in one of the Lander which make up Federal Germany, questions about the number of wives that are acceptable are being asked and must be properly answered prior to the grant of naturalisation and full citizenship.

43.In France, the Conseil d’Etat26 has ruled that the constitutional principle of laïcité is so important that a Muslim who does not accept it and who believes in working for a religious state cannot be granted citizenship.27

44.In my view asking the question "What differences should we address?” is important not just because the law is becoming more complicated. It is important because the clarity of the answers will affect the way the law works. 45.No one knows all the law, and there are very few people that know all equality law. Indeed it is clear that the way a law about equality and diversity will work is through the dissemination of codes and guidance on good practice together with, hopefully but by no means guaranteed, a reasonably good press. 46.The process of changing or creating laws can have a normative effect on society; this can only be backed up by the sensible litigation of test cases in order to explain further to the public what the law is about. But this process is not only notoriously ineffective generally but can be particularly difficult in the area of equality law where there is still little common understanding of what it is that we are seeking to do. Nowhere is that more true than in relation to indirect discrimination.

AN EXAMPLE OF INIDIRECT DISCRIMINATION IN A DIVERSITY CONTEXT

24 http://www.stop-discrimination.info/ 25 http://europa.eu.int/abc/symbols/index_en.htm 26 The French Constitutional Court. 27 For a wider consideration of this issue see Conseil d'Etat. Rapport public 2004. Jurisprudence et avis de 2003. Un siècle de laïcité (Etudes et documents n.55)

8 47.Let me demonstrate this last point by reference to a simple news story concerned with exactly the kinds of diversity issues which we and the CEHR might be expected to address at a very early stage.

48.This story is entirely contemporary, being taken from the BBC website on Tuesday last week.28

Advert sparks job centre race row

A Kent builder claims he was called racist by Jobcentre staff, after his advert for a carpenter said the person must be able to speak and read English. Dean Osmon, of Teynham, was told it might breach the Race Relations Act. He said spoken English was vital for workers to deal with clients and explain technical details. The Department for Work and Pensions said each vacancy was judged on its own merits and Mr Osmon's language restrictions did not breach the act. The advert read: "Must be able to understand English, written and verbal, as will be dealing with clients in residential and business premises." But a letter from the Jobcentre Plus diversity and race equality team to Mr Osmon said: "You informed the contact centre you were not willing to employ anyone who did not speak English. "Where employers discriminate against job applicants on the basis of race, they may be in breach of the Race Relations Act." Mr Osmon said he thought it was "ridiculous". He said: "I think it's disgusting when you go into a Jobcentre, and they say change that word 'English-speaking', that you can't advertise for what you want." The Commission for Racial Equality told BBC South East Today it was reasonable for an employer to require employees to speak English in the work setting, particularly in customer- facing roles. The issue is being taken up by Shadow Work and Pensions Secretary Philip Hammond. He said: "I think it's nonsense." The ability to speak English, like the ability to speak Spanish or French, is a qualification. "I will be seeking an assurance that Jobcentre Plus will be instructed to treat a requirement by an employer for a linguistic skill, as precisely that, a requirement for a qualification and not a sign of latent racism."

49. The interest to us of this story is not just that the Job Centre got it wrong 29 or that the Shadow Work and Pensions Secretary had become interested in it. Rather what is interesting is what it seems the Job Centre was trying to do.

50.They obviously wanted to secure compliance with the Race Relations Act 1976. No doubt they had an active Race Equality Scheme30. We know that their Diversity and Race Equality Team were involved and we can assume that they had been trained and told language requirements are prima facie indirectly discriminatory.31

28 The story was on the BBC news website for the 2nd January 2005 at http://news.bbc.co.uk/1/hi/england/kent/4579056.stm Similar stories can be found on the web or in the papers on any number of other days. 29 If they did. We simply do not know the extent to which English really was essential in this job. 30 See the Race Relations Act 1971 (Statutory Duties) Order 2001, S.I. 2001 No.3458. 31 Perhaps they were aware of the long discussion about the use of English language tests for the recruitment of overseas doctors: see e.g. Rowenska v. General Medical Council [1998] ICR 85.

9 51.They must have applied what they had learnt and realised that the English language requirement was bound to disadvantage many persons who might otherwise be perfectly competent carpenters. So they saw that there was an equality and diversity issue in the terms of the advertisement.32

52.It is obvious that Job Centre wanted the advertisements it published to be accessible to as diverse a group of people speaking different languages as possible. They thought that in acting thus they were promoting diversity. 53.However either they forgot to ask whether this requirement which obviously prima facie affects non British more than British carpenters was “objectively justified” or if they did they failed to understand or to analyse sufficiently deeply or perhaps most importantly to explain what objective justification means.

54.Lets remind ourselves of how the law as it now stands33 works in a case such as this. It is discriminatory for an employer (and a Job Centre in assisting an employer) to apply a provision, criterion or practice in a recruitment process which would put persons of a particular race or ethnic or national origin “at a particular disadvantage” unless the employee can show that the application of the provision, criterion or practice is “a proportionate means of achieving a legitimate aim.”34

55.In my view it is just about possible that this was indeed an unjustified advertisement. I will discuss this a little further below. 56.But in this simple story we can see immediately just how easily it was for a Government agency – no doubt working with the best of intentions to promote equality and diversity – to get into an apparent mess and indeed, importantly, in the process become vilified. 57.Fortunately the BBC story was relatively straightforward but it is all too easy to see how the repetition of this kind of mistake could swiftly lead the whole idea of equality and diversity into disrepute. Simply to say we were seeking to promote diversity would not have been adequate to the task of explaining the Job Centre’s decision. 58.So unless this new emphasis on diversity is sufficiently simple and robust to apply, and based on well-established and clear legal principles, it will not be able to weather such a storm of complaint. 59.The management of the promotion of these concepts will be the task of the CEHR, but the question we must address for future legislation is: how we can ensure that the law works with the promotion of equality and diversity and not against it? The answer is by means of law which is understandable and indeed widely understood, both as to what it requires, what it does not require and how it works. 60.Though it is undoubtedly not easy to legislate in this way I do not think it is impossible. This vision of respect for, and inclusion of, the whole range of

32 Of course we do not necessarily know the whole story. In another such case it is possible that such a request might be used to ensure that the builder only received candidates of a certain kind. He may have an aversion to those from the new European countries such as Poland and the Baltic States. If that were the case then the Job Centre would have been entirely within its rights to refuse the advertisement. Though I should make it clear that there is no reason to suppose that was Mr Osmon’s intention in this story. 33 Following amendments made to give effect to the Race Directive 2000/43/EC. 34 See Sections 1A, 4 and 14 of the Race Relations Act 1976.

10 diverse humankind can be very powerful when well articulated. The need is for a legal construct which accurately secures what we want diversity to mean when ordinarily used in a simple discourse like this.

DIGNITY AS A TOUCHSTONE FOR DIVERSITY

61.So I am convinced that we need simple legal concepts (what lawyers like to call a touchstone) to help unravel these issues. I do not suggest that there is a simple single touchstone which can do the trick in every case, but I do think that we need some guide to help the public to consider more deeply what is the right approach to a situation in which the diversity of our society comes up against some rule or requirement - as in the case reported on the BBC. 62.The increased focus on the diversity of Britain really seems to me to require a deeper consideration of the non-typical, or the other, experience or life than our own. It requires us to engage with the non-typical or other at least in the first place without preconception or stereotypical assumption. It requires seeing whether such a person (or group of persons) can be included into our society with some changes being made if necessary. We must at least buy into the possibility of inclusion or at least reject knee – jerk chauvinism. It is clearly premised on a well articulated toleration.

63.The approach to that consideration has to be based at least in part on protecting the dignity of the persons involved. This is not surprising because dignity and equality are necessarily linked.35

DIGNITY AND EQUALITY IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

64.The United Nations Universal Declaration of Human Rights36 was not only an inspiration for the European Convention on Human Rights but also for much of our equality law. Indeed the point can be put the other way around equality and dignity are joint values which underpin human rights.37

65.A short consideration of how the Declaration makes equality a key theme expressly linked with ideas about the huge range of difference that there is in humankind may be helpful. The theme that can be developed by reference to almost all of the Articles of the Declaration, however a sample will suffice to illustrate this point:

Preamble

35 Much of my thinking of this has been honed in discussion with Gay Moon and I acknowledge immediately her contribution in “From Equal Treatment to Appropriate Treatment; What lessons can Canadian Equality Law on reasonable accommodation teach the U.K.”already circulated to the EDF in December 2005. 36 Adopted and proclaimed by General Assembly of the United Nations: See Resolution 217 A (III) of 10 December 1948. 37 Professor David Feldman provides an illuminating discussion of the way in which these two values work conjointly to underpin human rights in Chapter 3 of Civil Liberties and Human Rights in England and Wales, OUP, 2nd Edition, 2002.

11 Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,…

Article 1.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

66.Thus the Declaration celebrates the diversity of humankind and asserts that the mere fact of difference should not be a reason for refusing any of the

12 basic rights set forth in the Declaration. It expressly refers to community and implicitly asserts the importance of inclusion. 67.However I do not think we can stop here. This emphasis on dignity helps to resolve many problems but not all of the examples which I have offered. 68.It is easy to see that female circumcision is not at all dignified in any sense. We do not consider it to be dignified to be married to more than one person. Note here that we are not interested as a generality in the answer to the question what does a particular second wife think about it. It is an objective assessment that in Britain to be a second wife is not dignified. 69.Dignity was certainly at work in the framing of the Gender Recognition Act in particular in not requiring that a person should under-go gender re- assignment surgery as a condition for recognition. 70.To Parliament and many in the country dignity was enhanced by the decision to permit civil partnerships though it may be thought that it is not wholly dignified to withhold the word marriage from a civil partnership. To me what is particularly interesting is the extent to which this has not bothered the press. Many of the papers for instance spoke of Elton John and David Furnish getting married.

71.But I do not think that it is easy to see dignity at work the other areas I have mentioned. In relation to driving we tolerate left-hand drive cars but not driving on the right hand side of the road not for reasons of dignity but for reasons of certainty and safety.38

72.In France the state insists on a commitment to laïcité because the modern French state was born out of a revolution which threw off the joint yoke of monarchy and established church. It is perhaps arguable that the maintenance of laïcité in state matters enables no religion to take advantage of another by use of the state. 73.While we may condemn drug abuse it is not clear that banning the religious use of marijuana is necessary to stop the loss of dignity that abuse causes. Moreover if we are willing to let it be used under control in some medical situations then perhaps it could be controlled in some other situations. 74.In the case of the language requirement I am not completely sure that a dignity test would necessarily have lead to the same conclusion. Mr. Osman seemed to have insisted that the Job Centre apply an undefined English language test for him. 75.But competence with English is always relative, even among mother tongue, British born, speakers. If he intended his requirement to operate as a mother-tongue speaker then it plainly would not have been objectively justified. If he meant competence to communicate fast and effectively on a building site then he should perhaps have re-worded his advertisement. However I do not think that such an approach would be best communicated to him in the language of dignity! 76.In my view while recognising that there are certainly limitations to its practical use, an assessment, in a situation in which equality law is in play, of the way

38 Dignity could perhaps be brought into the consideration by saying that the inevitable accident would not be very dignified.

13 in which objectively the dignity of those involved is affected is helpful and may well lead to the right resolution of a diversity issue.

HOW CAN THE LAW SHIFT FROM ITS PREDOMINANT FOCUS ON TREATING EVERYONE THE SAME TO AN APPROACH WHICH ALSO RESPECTS THE NEED FOR DIFFERENT TREATMENT AT TIMES?

77.Here again I think that the concept of dignity is helpful but I must first set this question in its proper context.

THE GENERAL PRINCIPLE OF DISCRIMINATION AND ITS LIMITS

78.There is a statement of the general principle of discrimination, especially which is often said to be the principle on which the principle of equal treatment is founded.

79.The traditional concept of discrimination39 is as follows: people in similar situations should be treated in the same way and those not so similarly situated should be treated differently unless there is an objective justification for the treatment in question. This principle is concerned to identify both similarity and difference as a basis for rational, and so just, behaviour.

80.It has been recognised by the Privy Council in Matadeen v. Pointu, and adapted and applied by the House of Lords as part of our common law in A and others v Secretary of State for the Home Department40 and has been repeated frequently in the case law of the European Court of Justice, for instance in this passage:

“ .. …comparable situations are not to be treated differently and...different situations are not to be treated alike... unless there is a clear objective justification...41

81. The principle has also found its way into the case law of the European Court of Human Rights when expounding on the application of Article 14 of the European Convention on Human Rights.

82.The principle has never been precisely transposed into our domestic legislation though the importance of ensuring that that there are similar circumstances before deciding that there is discrimination has found its way into our domestic legislation.42

39 This principle was stated at least as early as the time that Aristotle was writing: 40 [1999] 1 AC 98 at 109, [2004] UKHL 56, [2005] 2 AC 68 per Lord Bingham of Cornhill at [68]. 41 See C-279/93 Finanzamt Köln-Altstadt v. Schumacker [1996] Q.B. 28; [1995] 3 W.L.R. 498; [1995] All E.R. (E.C.) 319; [1995] E.C.R. I-225; likewise in Case 203/86 Kingdom of Spain v. Council of the European Communities [1988] ECR 4563 at [25] the ECJ said that “...comparable situations are not to be treated differently and...different situations are not to be treated alike...”; similar comments have been made by the Advocate – General’s Opinion in Case C-342/93 Gillespie v. Northern Health and Social Services Board [1996] I.C.R. 498 at [30], and by the ECJ and in previous and subsequent cases. 42 What is a comparable situation is defined explicitly in numerous places in the code of anti-discrimination legislation.

14 LIMITATIONS

83.As a general principle it tells us little about the grounds for justifiable exceptions and it is here that the difficult questions have often been perceived in equality issues. A further point is that this principle of course does not tell us how we should identify whether two persons are not in a similar situation nor does it say how we should act when we find on a detailed analysis that the situations are different. That is another key reason for this increased focus on difference. 84.The more penetrating analysis of why statistical inequalities exist and indeed are sometimes increased, has lead to a much more intense consideration of what to do. At present we have not got a reliable system for assessing when we should permit positive action and this is barely covered in European law. 85.Take a police force as an example of this. All the police forces have been analysed as to the extent to which they have recruited and retained women and minority ethnic officers. Moreover the Home Office has set guidelines for them in relation to this. Many of these forces have worked hard at the level of human resource management to seek to recruit and retain a proportionate number of women and minority ethnic officers. Some are finding this very difficult to achieve.

86.In some cases the rules have been changed since it was found that they indirectly discriminated. Thus the height rules have gone from (I believe) all forces. But a force can carry a reputation which can have a chilling effect on recruits. This was addressed in Northern Ireland by the so called Patten Quotas which require a Catholic officer to be recruited for every non- catholic.43 A special exemption was required for this when the Race Directive was passed.

87.Take selection as a Parliamentary candidate. Despite women having the vote since well before the last war it is a commonplace that women are not being selected in equal numbers to be prospective candidates in winnable seats. In this case the lack of diversity was addressed by permitting positive discrimination in the selection process.44 This legislation like the Patten provisions has a sunset clause and will come to an end unless renewed in 2015.

88.In the selection of women as candidates and in the selection of police officers in Northern Ireland, Parliament has accepted that even though the procedures are ostensibly run on an equal opportunity basis which assumes that each candidate has an equal chance, in practice the such an approach does not achieve a desired outcome. 89. That desired outcome is of course accepted as one which better reflects the diversity of the country. In these cases the justification has lain in a recognition that women and Catholics are in a different situation and therefore must be treated differently.

REASONABLE ADJUSTMENT

43 Police (Northern Ireland) Act 2000 44 Sex Discrimination (Election Candidates) Act 2002

15 90.We have reached this recognition because of the outcomes when assessed on a group basis and over a long period of time. This kind of analysis is not appropriate for all cases.45 We would like to have an equality law which is based on a principle which can operate more swiftly.

91.The difference between the approach taken by the Disabled Persons Employment Act 1944 and the Disability Discrimination Act 1995 shows what can be achieved. At the end of the last war it was perfectly clear that the war wounded would not be able to re-enter employment in the same way that those who had returned without such permanent scars. The approach was to impose recruitment and retention quotas on large companies and other organisations. 92.These quotas worked for a while but soon became unattractive and fell eventually into desuetude only to be replaced by the 1995 Act. The approach here was different. Quotas went out and in came a much more subtle approach requiring adjustments to be made to assist a disabled person to overcome the barrier to employment (or other benefits). 93.This approach is much more effective than a quota system since it deals with the individual circumstance. The nature of the requirement to make an adjustment is determined by the circumstances of the disability and of the workplace (or other situation). The problem is that it is to an extent (indeed quite a large extent) unpredictable in the employment field. In relation to goods facilities and services the anticipatory duty to make reasonable adjustments is of a significantly different quality. 94.Can this reasonable adjustment approach be taken out beyond disability? I consider that it can but that there are new problems and limitations which will flow from it. In Canada it is well known that the principle of reasonable accommodation to the point of undue hardship will apply. This is a sort of live and let live provision imposing little limit on what can be required to permit diversity beyond determining a rule for the boundary between one person’s liberty and its effect on another. 95.J. S. Mill would be delighted to see this kind of legislation in effect. It permits much and limits little. It is the antithesis of dirigisme. Its greatest problem it seems to me is that as a rule it requires to be applied uniquely in each case and so is perhaps not a great contributor to legal certainty. However this may also be its strength since it accords so closely to some of the basic rules of life in a family that we must put up with much on the premise that we too must ask to be tolerated.

CONCLUSIONS

96.Though I have headed this part of my paper it is I think too early for conclusions of any great substance as to how we might legislate. That I think still requires much further debate. 97.We can sketch out some of the context for any such legislation. It must be clear and simple. It must reflect the best of life’s rules for toleration and

45 Nor indeed would it be permissible in many areas of European equality law in which there are very strict limits on the extent to which positive action is permissible. For an excellent analysis of the position to date see the Advocate - General’s Opinion in Case C-319/2003 Serge Briheche v Ministre de l'Intérieur, Ministre de l'Éducation Nationale and Ministre de la Justice judgment 3rd July 2004.

16 acceptance and seek to universalise them in a way which applies ready answers. 98.It must provide a basis for the comprehension of the law on indirect discrimination. It must enable the diverse lives of modern Britain to be lived at both the micro and the macro level. 99.Perhaps above all else it must accept that where different treatment is required because persons are in a different, but related situation, positive action to enhance toleration, dignity and eventually equal opportunities is necessary and desirable. 100. The gain would be immeasurable and we too like the European Union and other states would be able to claim in truth that there was strength in our diversity!

ROBIN ALLEN QC

8 January 2006