edf - justice - positive action - robin allen qc1 reflections on positive action in the united...

EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

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Reflections on Positive Action in the United Kingdom

ROBIN ALLEN QC

CLOISTERS


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PARLIAMENT’S RELUCTANCE TO SPEAK OF POSITIVE ACTION No use of “positive action” in any primary

legislation at all Reference to “positive action” in the

explanatory memorandum for the Sex Discrimination (Election Candidates) Act 2002

First explicit use in the Religion and Belief, Sexual Orientation and Age Regulations

Consistent with overall poor connotation of positive discrimination


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POST – WAR POSITIVE OBLIGATIONS FOR DISABLED Disabled Persons Employment Act had

obligation on large employers to appoint quotas of registered disabled persons

Lesson to be learnt from ultimate failure of this legislation – Not time limited to period post war Depended on disabled persons willing to

register Poor enforcement of quota system Dead letter long before Act repealed


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POSITIVE ACTION THROUGH ENFORCEMENT OBLIGATIONS Tribunal powers under Sex Discrimination

Act 1975 and Race Relations Act 1976 to make remedial recommendations enforceable by financial penalties

Appeal court rulings that these could not be used as a form of positive action because of the connotation of positive discrimination

Now rarely used


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GENUINE OCCUPATIONAL REQUIREMENTS Defence to discrimination complaints in the

employment field where genuine occupational requirement proved

Reason for the requirement may lie in genuine need to provide services to a disadvantaged group


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POSITIVE ACTION THROUGH TRAINING Sex Discrimination and Race Relations

Acts permit positive action in targetting training

Must be evidence of under-representation Note no obligation to act Unsatisfactory limits on these provisions

since they do not permit employment


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POSITIVE ACTION THROUGH MAINSTREAMING No general mainstreaming obligation in the

UK Section 71 RRA - first provision to impose

an obligation on local authorities to promote equality and good relations

Relatively weak obligation – to “have due regard”

Strength of obligation now lies in the detail of delegated legislation and Codes of Practice on public equality duties


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POSITIVE ACTION AND SUNSET CLAUSES Compliance with international

standards on “special measures” Sex Discrimination (Election

Candidates) Act 2002 Northern Ireland Policing Legislation


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POSITIVE ACTION HOT SPOTS

Ethnic minority disadvantage and the problems of definition

Mismatch between public perceptions of what ought to be permissible and what is – MOBO, Black Business Awards, Women’s Literature Prizes, Police Recruitment and Retention

Lack of unifying theory about purpose of positive action


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POSITIVE ACTION AND EQUALITY ACT 2006

A changing concept of equal opportunity with greater emphasis on

individuality, multiple identities, mutual respect, and dignity.


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POSITIVE ACTION AND THE NEW FEDERALISM Already different approaches in

Northern Ireland to Great Britain Equality Act 2006 recognises

importance of differences between Scotland Wales and England

Will this lead to different regional approaches?


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SOME KEY TASKS A clearer idea about when positive action

should be mandatory and when it is permissive

Expanding the limits of what is permissible to the furthest under EC and international law norms

Clarifying the relationship between mainstreaming and positive action

Addressing multiple disadvantage Strengthening Tribunal/Court remedial

powers

edf - justice - positive action - robin allen qc1 reflections on positive action in the united...

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