The single Equality Act: a busting flush?

1. The single Equality Act: a busting flush? Aileen McColgan

2. the background • Burgeoning chaos of discrimination law provisions • Hierarchies, lack of coherence, confusion • Discrimination Law Review promised little more than consolidation, with some threat to positive duties • June 2008 statement from Harriet Harman and Framework for a Fairer Future: the Equality Bill, more of the same • single equality duty on public bodies, • greater “transparency”, • Wider recommendation powers for tribunals, • ? Multiple discrimination claims? • ? Representative actions?

3. the problems • “one size fits all” places enormous strain on the system: • Roma Rights [2005] 2 AC 1 (pre House of Lords)/ Gillan v Commissioner of Police of the Metropolis [2006] 2 AC 307 • Lewisham LBC v Malcolm [2008] 3 WLR 194 • Azmi v Kirklees MBC [2007] IRLR 484/ Ladele v LB Islington

4. Roma Rights • what is the position in law if, as seems to the court wholly inevitable, immigration officers, aware of the fact that the overwhelming majority of those seeking asylum from the Czech Republic are Roma (it may be doubted, indeed, whether any such are non-Roma), bring a greater degree of scepticism to bear on a Roma’s application for leave to enter for some permitted purpose than upon an apparently comparable application by a Czech non-Roma?

5. Gillan • (Lord Brown): “It seems to me inevitable, however, that so long as the principal terrorist risk against which use of the section 44 power has been authorised is that from al Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance (particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist-related items).”

6. Malcolm • a person (“A”) discriminates against a disabled person if— • (a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and • (b) he cannot show that the treatment in question is justified.

7. Malcolm • (Lord Scott): “The problem was the dog. The dog was the reason for the refusal of entry. … The problem, I repeat, was the dog. The restaurant manager’s reason for refusing entry to the dog would not, in my opinion, have related to the blind man’s disability…”

8. Azmi v Kirklees • indirect discrimination • justification defence available

9. Ladele v Islington “Applying a rule to all Registrars does not mean that the Respondent has demonstrated that it did not commit an act of [direct] discrimination”.

10. Where to from here?