W e have had a lot of new discrimination law in the past 12 months and there is more to come. With protection against discrimination for sexual orientation and religion on the books, changes by regulation and statute to disability discrimination in the pipeline, draft age discrimination regulations awaited and the Government proposing a single Commission for all strands of discrimination, many may be thinking enough is enough.
Not so: all of these changes emphasise one glaring fact, which is that we have created a chaotic mess. There is too much law, it is too complicated, it exists in too many forms and there are too many inconsistencies, creating what Equal Opportunities Review editor Michael Rubenstein has called a “hierarchy of oppression”.
This refers to the fact that some groups are more equal than others. The most obvious example of this is that there is protection in education, housing and goods and services in race, sex and disability legislation but not in the law relating to sexual orientation, religion nor, when it arrives, age.
Is this huge disparity based on a considered moral and philosophical distinction? Does it occur because of deeply held ideological views in New Labour? No, it is simply a result of the Government’s antipathy to bringing in new law by primary legislation. There may be time to outlaw hunting with dogs this way, but not the prevention of discrimination on racial grounds.
Instead, use has been made of regulations that cannot be used to improve on the European rights they implement.
When Labour crafted the sex and race legislation in the 1970s and when the Conservatives introduced disability legislation, both governments saw the sense in applying the rules to all spheres of life. So why have the newer discrimination laws not had the same treatment? There is no sense in this disparity. All of this will be made much worse when the same approach is taken to age discrimination, as the Government intends. This will be the most all-embracing discrimination law yet passed and its coverage will be partial simply because of parliamentary expediency.
That is far from all that is wrong. The various laws that now apply to the nine areas of discrimination law are not internally consistent and apply different tests to similar issues, which is confusing for lawyers and small businesses (large business also find it a pain).
Professor Sir Bob Hepple pointed out in a recent lecture to the Industrial Law Society that the burden of proof can differ between one statute and another; there are different tests for indirect discrimination in the race and sex legislation and different duties imposed on public authorities depending on which strand of law is concerned.
The way it is anticipated that matters are to progress is that the Government will create a single Commission to take over and merge the responsibilities of the existing agencies and ask it to review the desirability of having all of discrimination law the subject of a single Equality Act.
This is nothing but a delaying tactic and one that makes no sense. We will have to go through the trauma and infighting that any merger creates, we then have the prospect of age discrimination being brought in by regulation that is likely to result in an imperfect job being done, as many critics have said about the sexual orientation and religion rules. We will then have a consultation that is unnecessary. All this will do is cause confusion and create litigation.
What should happen is that the Government should commit to supporting the Equality Bill, already introduced to the Lords by Lord Lester, and find the parliamentary time to allow it to become law in conjunction with the present timetable for age discrimination. The Cambridge Centre for Public Law has done much of the hard drafting work in conjunction with Lord Lester and Sir Bob Hepple. Now is the time for this to become a policy commitment by Government.
The law is confused and difficult to understand. It is never going to be simple, but a single act would make it coherent and much easier to use than it is at present. These issues are important and deserve support from the Government.
Stephen Levinson is a partner with Manches LLP. He can be contacted at [email protected] The views expressed in this article are those of the author and may or may not be those of his partners and colleagues