In a previous blog post, Mark Simpson argued that equality law is ill-equipped to defend social rights in the UK. A similar conclusion is also reached in the UK case study. From the perspective that Mark and the report take I would largely agree with this conclusion. However, I would argue that this is the wrong perspective to assess the success of equality law and if one takes a different perspective it can be argued that equality law could be fruitful in addressing socio-economic inequality. Consequently this post makes two alternate arguments: first, that equality law is ill-equipped to defend social rights because that is not what it is intended for; and second that just because courts take restrictive decisions does not mean that equality law is ineffective.
Before setting out both arguments it is important to briefly outline what socio-economic inequality is as the majority of legal research on socio-economic inequality brushes over this. There are three key, interrelated aspects of socio-economic inequality: poverty; economic inequality and class. Addressing poverty requires that everyone has a basic minimum to live a decent life. At the same time it is also important to tackle economic inequality (the difference between the richest and the poorest in society) as, if this is not reined in, the poverty line will constantly increase (as the cost of living and housing will increase) making it impossible to address poverty. Finally, there are barriers in society that, unless removed, inhibit social mobility (i.e. a person’s ability to advance their own social position) meaning they are likely to stay socio-economically disadvantaged. All three need to be dealt with to effectively tackle socio-economic inequality.
Equality law is largely concerned with enabling minority groups to advance their social positions (i.e. improve social mobility). It does this by securing equal treatment for minority groups (e.g. direct discrimination) and removing discriminatory barriers to ensure minority groups have equal opportunities (e.g. indirect discrimination/the PSED). Thus in relation to UK social rights it can be used to ensure that the social sector size criteria is applied in the same way to an ethnic minority family as it is to a similarly situated white family or that when consulting about reducing council tax benefit local authorities remove barriers that prevent minority groups from participating.
What equality law cannot do, in the absence of a similarly situated individual without the protected characteristic, is ensure everyone receives a basic minimum (i.e. address poverty). As socio-economic inequality is not just confined to minority groups, but affects historically privileged groups too (e.g. in education white working class boys are the lowest attaining groups) all that current equality law can do is ensure minority groups are not treated any more poorly than majority groups (i.e. white working class men). It cannot ensure both groups are treated equally well.
Instead of equality law, it is the role of socio-economic rights (for example the right to an adequate standard of living or the right to housing contained in documents such as the European Social Charter or the International Covenant on Economic, Social and Cultural Rights) to ensure that the state provides everyone with a basic minimum (i.e. addresses poverty). In the absence of justiciable socio-economic rights in the UK, it is understandable why equality law is being utilised to try to prevent the limited aspects of social rights the UK does possess being clawed away but this is not what equality law is particularly suited for and thus it should not be chastised for failing to do so.
Secondly, running through both Mark’s blog post and the UK Report is the understandable, and often made, legal assumption that in assessing the effectiveness of law in this area we need to look solely at the behaviour of governments and courts. This assumes that if courts are more willing to challenge the behaviour of governments, governments are more likely to meet their legal obligations, and the law can be argued to be effective. Conversely, if courts are overly deferential and thus extremely reluctant to challenge the behaviour of governments, governments are more likely to ignore their legal obligations, and the law can be argued to be ineffective. While not disputing this relationship between courts and governments, my argument is that it is overly simplistic, particularly in relation to equality law.
This is because it is not just governments who implement equality law and it is not just courts who enforce it. Thus basing an assessment of equality law’s success solely on the behaviour of both governments and courts is only giving a partial picture to the implementation of equality law. This can be seen with the public sector equality duty which applies to a wide range of public bodies from schools, to local authorities, to health authorities. Many of these bodies can take important action in addressing inequality. For example, schools over the last few years have drastically reduced the attainment gaps between disadvantaged and non-disadvantaged groups by reducing barriers to education (such as making maths more engaging to female pupils and providing materials to socio-economically disadvantaged pupils who could not otherwise afford them) thus helping these pupils improve their socio-economic position as adults. Yet this is not due to the willingness or the non-willingness of courts to uphold equality claims (equality cases in schools, with the notable exception of the highly specific special educational needs cases, rarely make it to the courtroom). Instead, it is largely the result of the school’s regulator (Ofsted), placing increasing emphasis on equality within schools that had led to this improvement. Focusing solely on courts and governments overlooks these important efforts to tackle inequality.
As Mark’s blog and the UK report state, equality law has been largely ineffective in defending UK social rights. However, where I depart from them is that I believe equality law should not be criticised for this. UK equality law is not perfect and of course can be improved, but its purpose is not to provide individuals with a basic minimum (which is the role of socio-economic rights) but to ensure similarly situated individuals are treated equally and that barriers that inhibit their participation in society are removed. Consequently, rather than criticising equality for not achieving what it cannot, efforts should be instead spent arguing for justiciable socio-economic rights. Additionally, in assessing the success of equality law we need to move away from focusing solely on the government and courts to also focus on other bodies (e.g. schools) and other enforcement mechanisms (e.g. regulators). Only in this way can we make a true assessment of equality law’s ability to address socio-economic inequality.
Lecturer, Nottingham Law School
Nottingham Trent University