Reform of United Kingdom Discrimination Law: Philosophy, Principle or Pragmatism?
| Author | Richard Townshend-Smith |
| Published date | 01 March 2001 |
| DOI | 10.1177/135822910100500103 |
| Date | 01 March 2001 |
International Journal of Discrimination and the Law, 2001, Vol . 5, pp
. 39-70
1358-2291/2001$10
© 2001 A B Academic Publishers
. Printed in Great Britain
REFORM OF UNITED KINGDOM DISCRIMINATION LAW
:
PHILOSOPHY, PRINCIPLE OR PRAGMATISM?
RICHARD TOWNSHEND-SMITH
Department of Law, University of Wales, Swansea
ABSTRACT
United Kingdom sex and race discrimination legislation has been in place for 25
years
. There is general agreement both that the legislation has had some degree of
beneficial impact but that change is long overdue
. There is a need to take greater
and more sophisticated account of the limits of law as a medium for the promotion
of social change
. At the same time, international and other developments continue
to press for the extension of legislation to different grounds of discrimination
.
The University of Cambridge Centre for Public Law and the Judge Institute
of Management Studies recently published a report entitled `Equality
: a New
Framework
.' At approximately the same time the Runnymede Trust (which is con-
cerned solely with racial justice) published a report entitled `The Future of Multi-
Ethnic Britain
.' This review article examines both reports, concentrating on the
issues relevant to the legal control of employment discrimination
. It congratulates
the authors of both reports for their detailed and sophisticated understanding of the
issues, and their proposals for law reform, but remains somewhat sceptical of the
capacity of even
a
reformed law to transform the behaviour and attitude of
employers, especially small and medium-sized employers
.
A
:
INTRODUCTION
It might rather simplistically be argued that the 1960s marked the
heyday of belief in the capacity of law to transform or at least signi-
ficantly `improve' society
. There seems little doubt that many of the
campaigners for anti-discrimination legislation were, at least in part,
over-optimistic in this regard
. Soon after the legislation took effect,
at the end of 1975, some academic commentators already appreciated
the technical and structural weaknesses of the legislation
. )
More
importantly, they appreciated the inability of law, on its own, to
facilitate the transformation of society to which the legislation
seemed
to be committed
.
Almost since its enactment, the legislation has been subjected to
regular and trenchant criticism
.' The majority of such criticism has
been studiously ignored by the Government of the day, for reasons
40
varying from lack of intellectual coherence, a feeling that the reform
proposals were motivated in the main by political or sectarian consid-
erations, or by the fact that such proposals would impose signific-
antly higher costs on industry without being shown to lead to directly
concomitant gains for those presumed to benefit from such reforms
.
The upshot has been that reform of the legislation has proceeded in
a piecemeal and incoherent fashion, often driven by the imperatives
of European Union law, and less often by a political or technical
whim
.
3
At no stage has the legislation been reviewed as a totality
.
That dismal record has now been resoundingly remedied
. Under
the auspices of the University of Cambridge Centre for Public Law
and the Judge Institute of Management Studies, Bob Hepple, Mary
Coussey and Tufyal Choudhury have produced a report entitled
`Equality
: a New Framework
.' The Report examines the current state
of anti-discrimination law in the United Kingdom, and recommends
a myriad of reform proposals
. It is theoretically sound, wide-ranging
in scope, and yet is rooted in the practicalities both of what law
reform is politically attainable and of what can legitimately be
expected of employers in a global marketplace
.
The philosophy of the Report (referred to here as the Hepple
Report) is not such as to permit a glib summary or the identification
of a few key recommendations which, if implemented, would trans-
form the law and the working experience of those whom the law is
seeking to protect
. For that reason it is all the more important to seek
to understand and critique its guiding principles and framework
. The
structure of this review article will be first to examine the successes
and failures of existing anti-discrimination legislation
. The next task
is to highlight the social problems that remain, problems which
reformed legislation must tackle
. In order to do this it is necessary
to consider what the report sees as the fundamental objectives of
anti-discrimination legislation
. It is only when this has been accomp-
lished that it is appropriate to turn to the details
. Legal reform pro-
posals will focus on the coverage of the legislation, the definitions of
unlawful conduct, and the procedures and remedies for legal enforce-
ment
. Finally we will consider what in many respects might be
thought to be the most novel and interesting contribution of the
Report
. This is in two parts
: first, the proposed positive duties to pro-
mote equality, where some differentiation must be made between the
public and the private sectors
; secondly, attention will be directed to
the changes to organisational structures which are considered to be
necessary if the proposed legal changes are to have more than a min-
imal impact on the employment opportunities of those groups within
the ambit of legislation
.
5
In addition the Runnymede Trust report `The Future of Multi-
Ethnic Britain' draws out many of the same issues and challenges
.
41
This report (referred to as the Parekh Report after its chair) is both
narrower and wider in scope than the Hepple Report
. It is narrower
in that the Runnymede Trust is `devoted to the cause of promoting
racial justice in Britain
.' Other grounds of discrimination are relevant
only insofar as they throw light on this perspective
.
It is wider in
that it looks at racism in many contexts, such as criminal justice,
housing, education, the arts, politics, as well as employment
. Dove-
tailing with the Hepple Report, it is the latter which is the focus
of
this article
.
B
: THE SUCCESS AND FAILURES OF ANTI-DISCRIMINATION
LEGISLATION
One of the strengths of the original legislation was the clear declara-
tion of its objectives
. These formed part of the preceding white
Papers' and provided a benchmark against which to judge success or
failure
. But to the extent that such a benchmark required a significant
transformation of society, there were inevitable reactions that the
legislation had failed
.
This is an exaggerated if understandable reaction
. The authors of
the Parekh Report `were convinced that the Race Relations Act 1976
has had a positive effect
. Together with the Sex Discrimination Act
of the previous year, which conceptually and politically
paved the
way for it, it has helped to curb the worst kinds of discrimination in
employment and in the provision of services
.
It has also had an
invaluable impact on the climate of opinion
.' This
latter
point is
inevitably hard to tie down in quantifiable terms
. It is, however,
surely very difficult to gainsay the contribution made by the Acts in
the fields of, for example, maternity rights, racial and sexual harass-
ment, and the rights of part-time workers . That the judiciary may not
initially have been in total sympathy with the philosophy, and that
many specific beneficial developments
originated at the European
level, is surely no more than a very minor caveat to the general truth
of the assertion
. Furthermore, many `organisations were led
...
to
examine and redefine those practices which may unintentionally have
an adverse impact on minorities and women
. They have been obliged
to remove some of the barriers to equal opportunities
.'
The sting
here lies in the use of the word `some' and in the following observa-
tion that `many barriers remain
.' Finally, equal opportunities policies,
stimulated by codes of practice which set broad standards, have been
important for changing corporate behaviour
.'
10
One can of course argue about the precise gains wrought by the
legislation
." In the case of gender, for example, it is possible to con-
clude that many of the gains since 1975 are due more to
general
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