Reflections on Positive Action in the United Kingdom

1. Reflections on Positive Action in the United Kingdom ROBIN ALLEN QC CLOISTERS EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

2. 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 EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

3. 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war • Depended on disabled persons willing to register • Poor enforcement of quota system • Dead letter long before Act repealed EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

4. 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 EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

5. 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 EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

6. 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 EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

7. 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 EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

8. POSITIVE ACTION AND SUNSET CLAUSES • Compliance with international standards on “special measures” • Sex Discrimination (Election Candidates) Act 2002 • Northern Ireland Policing Legislation EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

9. 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 EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

10. POSITIVE ACTION AND EQUALITY ACT 2006 A changing concept of equal opportunity with greater emphasis on • individuality, • multiple identities, • mutual respect, and • dignity. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

11. 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? EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC

12. 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 QC