UK equality law developments

1
UK equality law developments

• Professor Aileen McColgan,
• Matrix Chambers and Kings College London

2
the framework

• Sex Discrimination Act 1975
• Race Relations Act 1976
• Disability Discrimination Act 1995
• Employment Equality (Sexual Orientation)
  Regulations 2003
• Employment Equality (Religion or Belief)
  Regulations 2003
• Employment Equality (Age) Regulations 2006
• Equality Act 2006
• Equality act (Sexual Orientation) Regulations
  2007
• ?Single Equality Act 200?

3
forms of discrimination (generally)

• direct not limited to race of complainant or
  near relative
• indirect
• harassment
• victimisation

4
scope of discrimination law (generally)

• employment
• education
• provision of goods and services
• housing
• public functions

5
particular issues of interest to Hong Kong (?)

• definition of indirect discrimination
• justification of indirect discrimination
• UK exceptions to the prohibition on race
  discrimination
• race discrimination and immigration decisions

6
the RRAs old definition of indirect
discrimination

• Section 1(1)(b)
• A person discriminates against another if he
  applies to that other a requirement or condition
  which he applies or would apply equally to
  persons not of the same racial group as that
  other but
• (i)  which is such that the proportion of
  persons of the same racial group as that other
  who can comply with it is considerably smaller
  than the proportion of persons not of that racial
  group who can comply with it and
• (ii)  which he cannot show to be justifiable
  irrespective of the colour, race, nationality or
  ethnic or national origins of the person to whom
  it is applied and
• (iii)  which is to the detriment of that other
  because he cannot comply with it.

7
the RRAs new definition of indirect
discrimination

• Section 1(1A)
• A person also discriminates against another if
  he applies to that other a provision, criterion
  or practice which he applies or would apply
  equally to persons not of the same race or ethnic
  or national origins as that other, but
• (a)  which puts or would put persons of the same
  race or ethnic or national origins as that other
  at a particular disadvantage when compared with
  other persons,
• (b) which puts that other at that disadvantage,
  and
• (c) which he cannot show to be a proportionate
  means of achieving a legitimate aim.

8
the significance of the change

• requirement or condition Perera v Civil
  Service Commission
• now provision, criterion or practice
• Proportions the need for statistics
• now which puts or would put persons of the same
  race or ethnic or national origins as that other
  at a particular disadvantage
• which is to the detriment of that other because
  he cannot comply with it Mandla v Dowell Lee but
  cf Clymo v Wandsworth
• now which puts that other at that disadvantage

9
justification

• which he cannot show to be a proportionate
  means of achieving a legitimate aim.

10
general exceptions

• section 35 cl 49
• section 36 cl 12
• sections 37 and 38 cl 51, 52
• section 39
• section 41
• section 42

11
Section 39

• Nothing shall render unlawful any act whereby a
  person discriminates against another on the basis
  of that other's nationality or place of birth or
  the length of time for which he has been resident
  in a particular area or place, if the act is
  done
• (a) in selecting one or more persons to
  represent a country, place or area, or any
  related association, in any sport or game o
• (b) in pursuance of the rules of any competition
  so far as they relate to eligibility to compete
  in any sport or game.

12
Section 40

• Nothing shall render unlawful any act whereby a
  person discriminates against another on the basis
  of that other's nationality or place of birth or
  the length of time for which he has been resident
  in a particular area or place, if the act is
  done
• (a) in selecting one or more persons to
  represent a country, place or area, or any
  related association, in any sport or game o
• (b) in pursuance of the rules of any competition
  so far as they relate to eligibility to compete
  in any sport or game.

13
Section 41

• (1)  Nothing shall render unlawful any act of
  discrimination done other than on grounds of
  race or ethnic or national origins (a) in
  pursuance of any enactment or Order in Council
  or (b) in pursuance of any instrument made under
  any enactment by a Minister of the Crown or (c)
  in order to comply with any condition or
  requirement imposed by a Minister of the Crown
  (whether before or after the passing of this Act)
  by virtue of any enactment
• (2)  Nothing shall render unlawful any act
  whereby a person discriminates against another on
  the basis of that other's nationality or place of
  ordinary residence or the length of time for
  which he has been present or resident in or
  outside the United Kingdom or an area within the
  United Kingdom, if that Act is done (a) in
  pursuance of any enactment or Order in Council
  or (b) in pursuance of any instrument made under
  any enactment by a Minister of the Crown or (c)
  in order to comply with any requirement imposed
  by a Minister of the Crown by virtue of any
  enactment or (d) in pursuance of any
  arrangements made by or with the approval of,
  or for the time being approved by, a Minister of
  the Crown or (e) in order to comply with any
  condition imposed by a Minister of the Crown.

14
Section 42

• Nothing shall render unlawful an act done for
  the purpose of safeguarding national security if
  the doing of the act was justified by that
  purpose.

15
Prohibition on discrimination in exercise of
public functions

• Section 19B
• (1)  It is unlawful for a public authority in
  carrying out any functions of the authority to do
  any act which constitutes discrimination.
• (1A)  It is unlawful for a public authority to
  subject a person to harassment in the course of
  carrying out any functions of the authority which
  consist of the provision of
• (a) any form of social security
• (b) healthcare
• (c) any other form of social protection or
• (d) any form of social advantage other than the
  provision of goods and services etc

16
Prohibition on discrimination in exercise of
public functions

• Section 19B
• (2)  In this section public authority
• (a)  includes any person certain of whose
  functions are functions of a public nature but
• (b)  does not include any person mentioned in
  subsection (3).
• (3)  The persons mentioned in this subsection are
  (a)  either House of Parliament (b) a person
  exercising functions in connection with
  proceedings in Parliament (c) the Security
  Service (d) the Secret Intelligence Service (e)
  the Government Communications Headquarters and
  (f) any unit or part of a unit of any of the
  naval, military or air forces of the Crown which
  is for the time being required by the Secretary
  of State to assist the Government Communications
  Headquarters in carrying out its functions.
• (4)  In relation to a particular act, a person is
  not a public authority by virtue only of
  subsection (2)(a) if the nature of the act is
  private

17
section 19B exceptions

• Section 19C(1)    
• (a)  any judicial act (whether done by a court,
  tribunal or other person) or
• (b)  any act done on the instructions, or on
  behalf, of a person acting in a judicial
  capacity.
• (2)   any act of, or relating to, making,
  confirming or approving any enactment or Order in
  Council or any instrument made by a Minister of
  the Crown under an enactment.
• (3)  any act of, or relating to, making or
  approving arrangements, or imposing requirements
  or conditions, of a kind excepted by section 41.
• (4)  any act of, or relating to, imposing a
  requirement, or giving an express authorisation,
  of a kind mentioned in section 19D(3) in relation
  to the carrying out of immigration functions.

18
section 19D immigration

• (1) Section 19B does not make it unlawful for a
  relevant person to discriminate against another
  person on grounds of nationality or ethnic or
  national origins in carrying out immigration
  functions.
• (2) For the purposes of subsection (1),
  relevant person means
• (a) a Minister of the Crown acting personally
  or (b) any other person acting in accordance with
  a relevant authorisation.
• (3) In subsection (2), relevant authorisation
  means a requirement imposed or express
  authorisation given
• (a) with respect to a particular case or class
  of case, by a Minister of the Crown acting
  personally
• (b) with respect to a particular class of case
  (i) by any of the enactments mentioned in
  subsection (5) Immigration and related Acts,
  European Communities Act 1972, any provision of
  Community law which relates to immigration or
  (ii) by any instrument made under or by virtue of
  any of those enactments

19
immigration

• R (on the application of European Roma Centre) v
  Immigration Officer at Prague Airport 2005 2 AC
  1

20
feeling the strain?

• R (Gillan) v Commissioner of Police of the
  Metropolis 2006 2 AC 307