Justifying Affirmative Action: Perception and Reality
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00344.x |
| Author | Aileen McHarg,Donald Nicolson |
| Date | 01 March 2006 |
| Published date | 01 March 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 1, MARCH 2006
ISSN: 0263-323X, pp. 1±23
Justifying Affirmative Action: Perception and Reality
Aileen McHarg* and Donald Nicolson**
This article surveys developments in United Kingdom law and policy
which require, permit or are more accommodating towards, the use of
affirmative action. It then considers the various justifications that can
be used in support of affirmative action and their philosophical and
political strengths and weaknesses. Finally, it advocates a strategic
approach to the justification and use of affirmative action, taking
account of relevant political, contextual, pragmatic, and practical
considerations.
INTRODUCTION
Anti-discrimination laws and policies in the United Kingdom have clearly yet
to realize fully their promise to end historic patterns of discrimination,
exclusion and disadvantage. However, potentially significant changes appear
to be under way. Having for years adopted a rigidly formal or symmetrical
approach to the pursuit of equality, with only very limited exceptions, law and
practice are now more accommodating towards the use of positive measures
to improve the position of disadvantaged groups. Although change is still
limited and piecemeal, the United Kingdom appears to be converging with
many other jurisdictions, notably in North America and the European Union,
where the limitations of a formal approach to equality have been officially
recognized for some time. Special measures have therefore been permitted in
order to increase the participation of previously excluded groups in important
social activities, such as education, employment, the award of business
contracts, politics, and public appointments.
Such measures go by various names depending on the context and their
perceived acceptability. In this volume, the American term `affirmative
1
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law, University of Glasgow, Stair Building, 8 The Square,
Glasgow G12 8QQ, Scotland
** Law School, University of Strathclyde, Stenhouse Building, Glasgow G4
0RJ, Scotland
a.mcharg@law.gla.ac.uk donald.nicolson@strath.ac.uk
action' is generally used because, as we shall argue, it avoids some of the
(intended or unintended) pejorative connotations associated with alternatives
like `positive discrimination', `reverse discrimination', and `preferential
treatment', whereas the less pejorative term `positive action', which is
favoured in the EU context, is sometimes confined to what are otherwise
called `soft' or `weak' forms of affirmative action. The latter usually involve
either outreach programmes, designed to encourage members of under-
represented groups to apply for positions, or training programmes, intended
to enable them to compete on equal terms with more privileged candidates ±
though they might also be said to include accommodation strategies, which
take account of physical or cultural characteristics which might otherwise
reduce particular groups' ability to take advantage of opportunities. At the
other extreme, `hard' or `strong' affirmative measures assist members of
previously excluded or under-represented groups at the point of allocation
either through `decision-making preferences' in their favour or quotas which
reserve a certain percentage of positions or business contracts for them.
Situated somewhere on the continuum between weak and strong affirmative
action is the setting of goals and timetables for increasing the representation
of those from under-represented groups.
1
The contributors to this volume examine a variety of contexts in which
such measures are being or, in their view, should be introduced. Thus, Noreen
Burrows and Muriel Robison discuss the legal possibilities for extending
affirmative action to improve women's position in the labour market; Lois
Bibbings, and Andrew Francis and Iain McDonald explore the case for
special measures in university admissions and in the treatment of part-time
law students; Donald Nicolson calls for hard forms of affirmative action in the
legal profession; Kate Malleson challenges the idea that the merit principle
stands in the way of increasing judicial diversity; Aileen McHarg defends the
use of affirmative action in the selection of election candidates; and Robert
Dunbar argues that measures to support minority languages are justified and
should be extended. Compared to the experience in other jurisdictions, these
and other developments are rather belated. However, as the contributions of
Nicole Busby, Anke Stock, and Martin Sweet on various aspects of
affirmative action practice in, respectively, Canada, Germany, and the
United States of America show, this provides an opportunity for United
Kingdom legislators and policymakers to learn from experience elsewhere.
This introductory essay surveys the nature of, and reasons for, change in
United Kingdom law and policy as a whole. Conscious that affirmative
action, particularly in its stronger forms, remains highly controversial here as
elsewhere,
2
we then go on to consider the different ways in which it can be
2
1 They are soft in the sense of not requiring mandatory preferences, but can effectively
act as quotas if backed by sufficient pressure; see, for example, n. 31 below.
2 See, for example, A. McColgan, Discrimination Law: Text, Cases and Materials
(2005, 2nd edn.) 143.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School
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