I EASY CASES MAKING BAD LAW: the ENGLISH JUDICIARY
EASY CASES MAKING BAD LAW: THE ENGLISH JUDICIARY, DISCRIMINATION LAW, AND STATUTORY INTERPRETATION Michael Connolly UCL PhD ‘I, Michael Connolly confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis.’ i ABSTRACT The definitions of discrimination provided by equality legislation are a measure of how far a society is willing to challenge deep-seated assumptions, attitudes, and patterns of inequality. The judiciary has a major role in shaping these definitions. This is evident from the antecedent American cases and those of the Court of Justice of the European Union, which worked with more aspirational than detailed legislative provisions. One might conclude that the legislation coming before the English courts was thus ‘ready- made’, presenting the judiciary with few interpretive difficulties. But on many occasions this has proved not to be the case, with the senior English courts producing a number of highly contentious decisions. Commentators, heavily critical of many of these cases, tend to analyse them by reference to external understandings of concept, theory, or policy. This work offers a unique internal critique of the process producing the cases subject to such academic scrutiny. It makes a textual analysis of leading English judgments on the definitions of discrimination, and does so through the lens of statutory interpretation - the judge’s primary function. The scrutiny finds that these judgments are technically flawed in terms of the process of statutory interpretation and the definitions produced; it also finds them to be overcomplicated, excessively long, and often unduly restrictive.
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