11 The New Single Equality Act in Britain Bob Hepple1 Introduction The Equality Act 2010 was one of the last ▪ Widening the circumstances in which measures to be enacted under the Labour positive action is allowed; and ▪ A new duty on public authorities to May 2010. It is the outcome of 14 years of have due regard to socio-economic disadvan- campaigningGovernment whichby equality lost office specialists in the and U.K. hu in- tage when taking strategic decisions. man rights organisations. Remarkably, there was eventually cross-party support for near- Of course, legal models cannot simply be ly all of its provisions, and the new Conserv- transplanted from one jurisdiction to anoth- ative-Liberal Democrat Coalition Govern- er. Account has to be taken of the precise his- ment is committed to bring it into operation torical, political, and socio-economic circum- in stages from October 2010. The Act covers stances in which equality legislation is made Great Britain (England, Wales and Scotland) and enforced. This article, therefore, aims to but not Northern Ireland which has devolved explain the history and context of the British powers on these matters, and appears to be Act, and then to assess its content against the set to continue its own patchwork of anti- benchmark of the Declaration of Principles discrimination legislation rather than en- on Equality (the Declaration) launched by act a single Act, because of disagreements The Equal Rights Trust (ERT) which repre- within the power-sharing government of sents a “moral and professional consensus that province. However, Northern Ireland among human rights and equality experts.”2 It will be seen that, despite its promise, there ways to combat inequality, some of which are are still some important gaps between the has since 1989 been the pathfinder of new Act and the vision of the Declaration. Somereflected features in the of British the Act Act. may serve as a mod- 1. Five Generations of Legislation el for other countries, in particular: ▪ Adopting a unitary or integrated per- generation of equality legislation in Britain. spective of equality law enforced by a single SocialThe Equality legislation Act of 2010 this kindis part is not of thethe “gift”fifth Commission; of enlightened rulers. It is the outcome of ▪ - nation, harassment and victimisation and and competing ideologies. As Abrams has applying Clarifying them acrossthe definitions all protected of discrimi charac- said,struggles “what between any particular different group interest of peoplegroups teristics; gets is not just a matter of what they choose, ▪ Expanding positive duties on public au- but what they can force or persuade other thorities to advance equality in respect of all groups to let them have.”3 - protected characteristics; tion of British legislation was based on the The first genera The Equal Rights Review, Vol. Five (2010) 12 notion of formal equality – likes must be The third generation started with the ex- treated alike. The Race Relations Act 1965 tension of legislation to discrimination on was the response of a Labour Government grounds of sex (Equal Pay Act 1970 and Sex to campaigns by, among others, members Discrimination Act 1975 (SDA)). This had of the Movement for Colonial Freedom and long been fought for by the trade union and the Campaign Against Racial Discrimination feminist movements and the Labour and Lib- to deal with the then widespread overt dis- eral parties. The unique features of the SDA crimination against recent immigrants from 1975, passed under a Labour Government, the Caribbean and the Indian sub-continent. were the introduction of the concept of indi- The Act was a kind of quid pro quo for the - Commonwealth Immigrants Act 1962 which rowed from the USA), and provisions permit- tingrect positiveor adverse action. effects This discriminationmarked the begin (bor- immigrants to come to the U.K. It covered di- ning of a transition from formal equality to recthad maderacial it discrimination more difficult forbut Black only andin places Asian substantive equality. Moreover, there was an of public resort, such as public houses and individual right to claim compensation for hotels. It established a Race Relations Board unlawful discrimination in industrial (later which investigated complaints through con- called employment) tribunals and courts. An ciliation committees. If conciliation failed and Equal Opportunities Commission (EOC) was the discrimination was likely to continue, the created to undertake strategic enforcement Board could refer the matter to the Attorney- and to assist individuals. This model was General to seek an injunction. followed in a new Race Relations Act 1976, deliberately introduced later than the SDA The second generation, the Race Relations because women’s rights were more popular Act 1968, was also a measure of formal equal- than those of ethnic minorities. There was ity. It was limited to direct racial discrimina- now a separate Commission for Racial Equal- tion but extended coverage to employment, ity (CRE) in place of the Race Relations Board housing, goods and services. Enforcement and Community Relations Commission was still through local conciliation commit- (CRC). The SDA was enacted soon after the tees, and voluntary bodies in 40 industries, UK joined the European Economic Communi- but if conciliation failed the Race Relations ty (EEC) under the Treaty of Rome which laid Board could itself bring proceedings in a des- down the principle of equal pay for women ignated county court. Campaign groups man- and men and later issued directives on equal aged to mobilise political pressure for this opportunities. There was a radical develop- new Act by commissioning two reports, one ment of European law on gender equality as a on the extent of racial discrimination (whose result of test cases brought by the EOC before existence many then denied) and the other the European Court of Justice (ECJ). A further on anti-discrimination legislation in the USA step towards substantive equality occurred and Canada. A Labour Home Secretary, Roy with the Disability Discrimination Act 1995 Jenkins, whose special adviser was Anthony (DDA). Growing political activism by disabil- Lester (later Lord Lester of Herne Hill QC, ity organisations had been seeking “rights not charity.” Disabled people increasingly the measure through Parliament, but once saw the welfarist approach as paternalistic againfirst Chair the quid of the pro Equal quo wasRights a restrictive Trust), steered Com- and oppressive. It was under a Conservative monwealth Immigrants Act 1968 to halt the Government that the 1995 Act established individual rights for disabled people to claim influx of East African Asian refugees. The Equal Rights Review, Vol. Five (2010) 13 equal treatment. It was recognised that dis- positive duties to achieve fair participation of ability discrimination is asymmetrical, and the Catholic and Protestant communities on measures to achieve substantive equality certain employers. This has resulted in sig- therefore included a duty to make reasona- ble adjustments for a disabled person. From for both Catholics and Protestants without 2000, a Disability Rights Commission (DRC) thenificant use improvementsof quotas.7 The in Northernfair employment Ireland was established. Act 1998 (implementing the Belfast/Good Friday Agreement) went further imposing The fourth generation resulted from Arti- positive duties on public bodies to have due cle 13 of the Treaty of Amsterdam (1997) regard to the need to promote equality of op- and the implementing Race Directive4 and portunity not only between Protestant and Framework Employment Directive5 (cover- Catholic communities, but also in respect of ing age, disability, religion or belief, and sex- age, disability, race, religion, sex, marital sta- ual orientation) and subsequently the Equal tus, and sexual orientation. In other words, Treatment Directive6 (covering sex). There public bodies had to mainstream equality were growing pressures within Britain for into the exercise of all their functions. This an extension of anti-discrimination legisla- approach crossed the Irish Sea to Britain in tion to the new strands from LGBT groups, 2000 in respect of race equality, following religious groups – particularly Muslims – and the inquiry into the death of a black teenager, those concerned with age discrimination. Stephen Lawrence, which exposed “institu- But without the Article 13 EC Directives it is tional racism” in the Metropolitan Police.8 unlikely that any domestic legislation would Amendments to the Race Relations Act not have been introduced at that time. A series only extended anti-discrimination law to po- of regulations implemented the Directives lice and similar functions, but also imposed between 2003 and 2007. The Government - chose to do this by secondary rather than ity duties.9 Similar public sector positive du- primary legislation, with the result that the tiesboth were general introduced and specific in respect public sector of disability equal British regulations could not go beyond the in 200510 and gender in 2007.11 provisions of the Directives. For example, the age, religion or belief and sexual orientation 2. The Campaign for a Single Act and - Single Commission scoperegulations of the hadFramework to be confined Employment to employ Direc- By 1997 when the Blair Labour Government tive.ment Despite and related the gaps fields and because shortcomings, that was thisthe was elected, anti-discrimination legislation generation