The UK’s equality legislation looks ‘seriously wanting’ and could scupper the proposed Commission for Equality and Human Rights, a High Court judge claimed last week.

Delivering the Legal Action Group annual lecture in London, Mrs Justice Cox, a leading employment lawyer before being appointed to the High Court in 2002, said that set against an international backdrop, ‘it is strictly a misnomer to describe our domestic laws as amounting to equality legislation. There is no developed concept of equality in our own law’.


She said the law has grown up piecemeal. ‘What we do have is a confusing array of different and regrettably inconsistent laws; discrete, anti-discrimination Acts of Parliament, provisions dealing with aspects of equality to be found in other legislation; and now new sets of regulations, all prohibiting acts of discrimination on certain specified and limited grounds in certain specified circumstances…


‘There is no single piece of legislation harmonising all these laws, eliminating the inconsistencies, ensuring that each strand receives the same level of protection and providing a clear, positive right to equality for all the citizens of this country. The present system has led to increasing and unacceptable legal complexity and unfortunately it looks set to continue. It is harder for employers to understand their legal obligations, harder for victims to seek redress and harder for judges to decide what the law is.’


Mrs Justice Cox also called for the Equal Pay Act, the Sex Discrimination Act and the Race Relations Act – all passed in the 1970s – to be updated, describing them as ‘undoubtedly creatures of their time’. She added that while they have done some good, ‘they have not delivered on substantive equality or equality of outcome’.


‘In its present form, the legislation renders compliance with legal obligations too dependent on the willingness and ability of individuals to take cases to court or tribunal and to enter the lottery of litigation, rather than by imposing positive duties on employers to promote equality in the workplace and to take steps to avoid litigation altogether.’


The judge highlighted three particular issues of concern: the lack of positive duties placed on public authorities to take steps to promote equality, leading to ‘institutionalised discrimination’; ‘the concept of indirect discrimination, which in my view we have never been able properly to get to grips with’; and her concern that the proposed Commission for Equality and Human Rights will not be able to fulfil its brief because the laws it has to work with are not accessible and clear.


‘It will be a tragedy if all [the commission’s] efforts have to be concentrated in securing compliance with complex, inaccessible and inconsistent discrimination laws. Progress in challenging inequality at work in this country will in my view be undermined, just at the time when the benefits of a clear, principled and coherent approach to tackling the problems are being realised by all those working in this field.’