The Inner Temple Yearbook 2021–2022
A Public Health Approach to Equality Law
A PUBLIC HEALTH APPROACH TO EQUALITY LAW From a lecture delivered by Master Iyiola Solanke via webinar on Monday 5 October 2020.
The title of this lecture is A Public Health Approach to Equality Law, and what I hope to do is have you think about whether it’s possible to take a more holistic approach to tackling discrimination that includes the law but also goes beyond it. My format for doing that is to think about how public health specialists go about tackling viruses. Thinking about what equality law is for, I’ll highlight a couple of academic ideas. Deborah Helmond, an American academic, argues that the purpose of equality law is to tackle demeaning distinctions. One of the examples that she gives is that a sign that says ‘men only’ is not demeaning when we find it on a bathroom door, but when we see that on a courtroom door, that is demeaning. Tarun Khaitan, a British academic, emphasises a different purpose for equality law. His argument is that the purpose of equality law is to protect autonomy, ensuring that people have the freedom to make the choices that are best for them.
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What I’m going to suggest is that equality law goes beyond that, actually, to tackle stigmatisation. And in tackling stigmatisation, what I’m trying to emphasise is social power. So, equality law is not just there to enable individuals to enjoy their rights, but equality law also should exist to ensure that social power cannot be used to dehumanise people, and therefore make them susceptible to discrimination.
Equality law is not just there to enable individuals to enjoy their rights, but equality law also should exist to ensure that social power cannot be used to dehumanise people, and therefore make them susceptible to discrimination. Moving on to the evolution of the use of law to tackle discrimination in England and Wales. There were many attempts in the 1950s to introduce Private Members’ bills to tackle what was then called ‘the colour bar’, but none of these were successful because there was a reluctance to use law to tread upon common law rights. This only really changed with the adoption of the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD) in 1964. This provides a backdrop to the first anti-discrimination law – the Race Relations Act 1965 – in England and Wales. That was replaced in 1968 by a second Act, which specifically prohibited racial discrimination in employment. In 1976, a more substantial Act was introduced, which was then brought into the Equality Act 2010.
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We now have a significant and mature framework of law to tackle racial discrimination. But I want to think about progress – I’m going to stay focused on race – and about what the impact has been of these bodies, these statutes and the body of case law over the last 50 years. In 2017, there were a number of surveys and investigations into race and racism in Britain. One of those was the McGregor-Smith report, which looked at race and employment – it concluded that there continued to be structural and historical bias in the labour market. A second report was the survey by David Lammy, of the criminal justice system. His conclusion was that there was still a significant over-representation in all areas of the criminal justice system of young black men. The shocking statistic provided in 2003 by the then Commission for Racial Equality, that that there are more young black men in prison in this country than at university, seems to still be accurate. Then there was the race audit conducted by the Cabinet – one of its conclusions was that white people are still much more likely to own their own homes and have jobs than people from ethnic minorities. Finally, looking at academia, one report by the Trade Union Congress on racism said that more than a third of all black and minority ethnic workers in the sector report bullying, abuse or racial discrimination by their employer. My next question is why there has been such limited progress. This was really the question that took me into thinking about the public health approach. My conclusion as to why there has been limited progress was that this can be traced to the individualism that is inherent in the legal approach to tackle racial discrimination and discrimination in general. I argue that our legal approach to discrimination is very much focused on individual attributes – either our sex or our skin colour or our age, our religious beliefs, et cetera. One of the things that the law has, in the past, forced individuals to do is choose between one attribute or the other. I think that is one weakness of the current approach to tackling discrimination. The second weakness is the way in which the law creates, or focuses on, an individual victim or complainant, which imposes a significant burden on that person who has to find their own resources to bring a case against an organisation. Having done that, even if they win, it’s questionable what they do win. Because often you’ll find those who bring cases of discrimination may have to leave their job and may find it difficult to find another.
