Does the English Legal System Do Enough to Address Inequalities between Individuals and Groups - Essay Example

Equality Act Protected Characteristics Module Module Number: Academic Year: Seminar Essay Question: Does the English Legal System do enough to address inequalities between individuals and groups? Student Name/ Number: Sex as a Protected Characteristic The United Kingdom has a complex body of laws which it uses to guard against sex discrimination. Since 1975, UK’s parliament has enacted a number of statutes to this effect and in response to the dynamic nature of the subject since the 1980s. The primary laws are: the Sex Discrimination Act 1975 (SDA), and the Human Rights Act 1998 (HRA), the Gender Equality Duty, and the European law. The enactment of the Equality Act 2010 (the Act) is seen as a tremendous step towards a freer society, because it incorporates the spirit of the European law and as well as that of domestic anti-sex discrimination laws. The primary clauses of the Act, which replaced the SDA, were enacted on 1st October, 2010. The Act is largely seen as consolidated body of law that expanded the meaning of direct discrimination to encompass inappropriate treatment based one’s association with an individual with one or more of the protected characteristics such as gender or a false belief that an individual enjoys the protected characteristic. The Act also removed the previously held role of a comparator in establishing cases of victimisation. Since 2010, it is believed that a number of the rules which were set up in the wide body of common law extending to four decades and which the previous anti-discrimination legal regime did not cover well have been taken care of by the statute. Nonetheless, the controversy surrounding protected rights and litigation around protected rights have remained the same since the enactment of the Act. The Bodies of Law Despite the strengths including its classifying of sex as one of the protected characteristics, it is argued that the Act does not harmonise the conflict among different bodies of laws regulating the issue of sex discrimination in the United Kingdom. The high number of sex discrimination cases that UK’s courts have been grappling since the enactment of SDA in 1975 and the subsequent incorporation of the 20th century statute, the enactment of various EU Directives, and the passage of the HRA, basically point to some of the weaknesses in the laws as far as safeguarding the protected right is concerned1. The Act requires public organizations in their provision of services to refrain from acts of sex discrimination. With fully functional laws in the SDA, the Gender Equality Duty, the HRA, and the European Law, the latest repeal to the law was aimed at streamlining the system by limiting cases of sex discrimination in the country. The European Goods and Services Directive 2004/113 is particularly seen as providing for a wider definition of sex discrimination to include indirect cases in trade. This way the SDA under Equality Act 2010 seeks to provide direction on how public organizations should supply goods, amenities and services. In light of these commodities, the longstanding clause on sex discrimination is evident in the SDA is section 29. The provision of the SDA outlaws discrimination based on sex by public organizations. Public organizations include schools, swimming, and library as well as leisure facilities. In addition, the provision applies to private organizations including shops, food joints, and companies providing hire services2. In spite of parliament’s good intentions to the passage of SDA, its section 29 does not provide absolute protection against discrimination based on sex. The provision of the SDA is only applicable to the services or amenities that are similar in nature to those which could be provided by the private sector. In light of this, transport is a typical example of the facilities and or services that can be provided by both the public and the private sector; health services also qualify under this category. This implies that under the provision, the government could discriminate on some of its citizens based on sex and still claim to be acting legally. In addition, the provision does not regulate public functions executed on the Crown’s behalf, since these actions are beyond the scope and or capacity of the private sector. In light of this, any perceived acts of sex discrimination relating to social security and registration of persons may be decided the government way with utter disregard for the rights of the concerned parties3. Additional protection Section 21A provides additional protection from sex discrimination by defining a public function as an event undertaken by a public agency and which is beyond the capacity of the private sector. The latter provision includes: formulating or executing public policy programs and priorities in the society on important policy areas including; health, learning and transport or when creating budgetary allocations. In contrast, SDA does not apply in the exercising of policing authority to carry out stop and searches, property seizures and detection of criminal suspects. In essence, these are executive powers of the Crown and are always exercised by Crown’s agents in the law enforcement agencies. In light of these executive powers, a Secretary of State may decline a request to enter or remain within the country without sex discrimination claims being validly raised against the holder of the office. As to whether single gender services could be guaranteed by public agencies, Section 21A of the SDA outlaws the provision of separate services based on sex only, in a number of circumstances. However, with the requirement by the law that the provision of public service should only be targeted at one sex when the provider is sure that only members of the sex in question are the only ones who require that service seems protective enough against discrimination. Despite its overarching role, SDA §21A has some limitations which are largely seen as leaving room for sex discrimination in the country. It may be lawful for some of the services offered by the House of Commons, the House of Lords and a number of the security units to treat women differently to men. In general, the provision permits the public authorities to act in a seemingly discriminatory manner if by doing so they would be fulfilling an obligation imposed upon them by another statue. For example, there are some special security forces in which women are validly barred from joining. The Gender Equality Duty The Duty was enacted in April 2007 to protect reinforce the already existing laws by protecting members of the society against sex discrimination. The body of law under section 76 A obligates public organizations, when executing out their mandates, to act reasonably to eliminate illegal discrimination and persecution by fostering fairness of opportunity across gender. This duty is applicable to all public organizations with few exceptions relative to service provision, policy formulation and in the labour industry as well as in exercising of any codified powers or decision making by legal entities. Human Rights Act 1998 The enactment of the HRA 1998 in 2000 and subsequent incorporation in the Equality Act 2010 was widely seen as the height of anti-sex discrimination laws in the United Kingdom and the supremacy of human rights. The primary objective of parliament’s passage of the HRA was to codify the fundamental human rights laws (including anti-sex discrimination laws) which had been passed by the European Convention on Human Rights (ECHR) as well as the spirit of various decisions European Court of Human Rights (ECtHR) in order to facilitate their better use by the UK4. In particular, HRA strengthens SDA in outlawing any public agency from acting in a manner that contravenes the Convention, except in situations where the meaning of any other key statutory laws prompts the court to act that way. The Act also requires the courts including tribunals and public commissions to consider any decisions, rulings or recommendations of the ECtHR and to give any legislation the widest interpretation possible as far as the Convention rights are concerned. In absurdity, courts and relevant commissions are obligated to respond with writs of incompatibility, whenever there is a statutory conflict. In light of this, the anti-sex discrimination laws under the Equality Act 2010 are protected within the lieu of parliamentary authority. HRA under Section 7 empowers anybody who feels that his or her human rights have been infringed on by a public agency to seek legal redress. In light of this, victims of sex discrimination have the rights to file their cases at the local courts or seek the intervention of the Strasbourg Court over the issue. In contrast, victims of sex discrimination are not well taken care of under the HRA because under the law, government agencies enjoy sweeping powers which they could abuse by acting in discriminatory ways. In a worst case scenario, the executive may suspend the relevant provisions of the Convention under article 15 of the law5. This is especially true under the pretext of security issues. In addition, by giving the courts more powers to literally “rewrite” the law, HRA cases such as R (ProLife Alliance) v. BBC [2002] EWCA Civ 297 symbolize the deviation from the UK’s statutory legal system to a common law regime, which is constantly evolutionary and has room for judicial activism as opposed to the protection of fundamental protected rights. European Union law The people of UK have additional protection under the international law in respect of sex discrimination. EU laws cover sex discrimination under the provision of goods, amenities and services outside of employment environments6. Through the EU Social Security Directive 79/7/EEC, the EU seeks to outlaw all forms of sex discrimination in line with social security programs. Under the Directive, people enjoy more safeguards against the dangers of sickness, invalidity, aging, workplace-related accidents and occupational illnesses and joblessness. Despite the seemingly promising protection against sex discrimination, the Directive does allow disparities in the pensionable ages across gender in the awarding of the pensions and any other relevant benefits. Case Law Various examples of UK’s case law on sex discrimination arguably add to the controversy already created by a network of statutory provisions and EU law7. This is especially true considering the inconsistency in the decisions on the cases seeking to obtain direction on the best ways to safeguard sex discrimination. In the case of A v B [1999] ET/260 2005/97, it was decided that a male nurse had been discriminated against by the employer, based on sex. The case saw a Nottingham employment tribunal establish that a health care facility acted in a discriminatory way in its treatment of a male clinician when it fired him for carrying out an internal examination of a female patient’s genitals. The evidence showed that the victim’s female colleagues were carrying out similar treatments of male patients without being dismissed. In another case that should alarm to the protection of transgender, in A v Chief Constable of the West Yorkshire Police [1999] ET/1802020/98, the court established that transsexual individuals are not protected by the EU law. In this case, the exemption of searches on individuals who had undergone gender reassignment (under SDA s. 7B (2)(a)) was found to preclude the doctrine of proportionality. Yet, the court dismissed indirect sex discrimination claims in the case of Aintree Hospitals NHS Trust v Reynolds [2003] All ER (D) on weak grounds. In this case, the court overruled the tribunal’s findings that the plaintiff’s employment was done in a way that was similar to his fellow colleagues who had been hired after the 1993’s enforcement of the NHS Trust employer program8. The court established that there were no commonalities in the cases as alleged. Prostitution Prostitution, defined as the exchange of intimacy services for finances, is legal in the United Kingdom, but not related behaviours such as soliciting of customers in public. Other prostitution-related activities, which are outlawed by the country’s laws include; kerb crawling, running or holding a brothel, pandering, and pimping. In addition, the Sexual Offenses Act 2003 outlaws buying services of a prostitute who did not act voluntarily even if the partner did not know about it. It also unlawful to buy sexual services offered by an individual under the age of 18, despite the fact that the law regards a person aged 16 as being capable of consensual sex in other cases9. Feminists Perspectives Feminists are split in thought as to whether prostitution constitutes freedom or discrimination of women. Anti-prostitution women movements argue that that prostitution constitutes exploitation of females and that the practice is a continuation of male chauvinism in society. This school of thought holds that prostitution has extremely negative impacts, both on the actual ‘victims’ and on society in general. This is especially true because it underscores stereotypical perceptions about women being used as sex objects. Other feminists view prostitution and commercial sex work as valid activities for people who voluntarily elect to engage in such acts. In the latter view, voluntary prostitution is different for forced prostitution; the former is therefore legal and should be supported by sex worker movements. Regardless, the conflict between the two feminist thoughts has proved highly contentious and comparable to the feminist movements of the 20th century. Areas which are prone to street prostitution are arguably rife with crime. In light of these negative impacts of prostitution, the government seeks to enforce Anti-social executive orders in order to legitimise government crackdown on individuals soliciting for sex and engaging in kerb crawling10. The law UK’s laws outlaw street prostitution under section 1(1) of the Street Offences Act 1959 as repealed by section 16 of the Policing and Crime Act 2009, which came into effect in 2010. The Sexual Offenses Act 2003 §s 48, 49, 50, 51(2) and 52 and 53 when read in conjunction with The Sexual Offences Act 1956 § 33A define a prostitute as an individual who offers or renders sexual services to another individual on more than one occasion in return for money11. In light of these definitions, a prostitute who chooses a private premise for their business is acting within the law, but those who are peddling the services in the streets are not. The controversy surrounding the whether or not prostitution is legal could witness a prostitute going to court on the grounds of Article 14 of HRA 1998. The provision seeks to guarantee everybody the freedom to enjoy the rights and liberties under the ECHR, without bias of any kind including sex among other protected rights. An interpretation of this provision in conjunction with the right to liberty under Article 15 could be construed as providing the prostitutes the green light to operate in the streets as part of their enjoyment of freedoms, provided their soliciting of customers is consensual and is done ‘decently’. In addition, owing to the fact that women have been more affected by government crackdowns on brothels than men, feminists and or the actual prostitutes could cite SDA in their discrimination claims based on sex12. This is especially true considering that police officers are generally picking women and leaving male patrons to go scot-free. But then, the police may be right in their actions. The prostitutes who loiter in the streets waiting for the arrival of their patrons are the ‘heart’ of prostitution. As such, their removal from the streets would curb the problem13. In Queensland, prostitution is fairly legal under the recent repeal of the Queensland Anti-Discrimination Act 1991. The 2012 repeal majorly adopted by a number of players in the state’s hospitality industry, previously allowed accommodation providers the authority to expel a prostitute from their premises, provided they had the slightest hint about the patron’s behaviour14. But since November 2012, by virtue of the Gold Coast ruling, prostitute now have the right to continue using the hotel room, which they have been let by an unsuspecting business, to conduct the business. Like the UK’s human rights and anti-discrimination laws covered under the Equalities Act 2010, the Queensland case has since evoked controversy over whose rights are superior: the business or the sex workers15. Authorities The controversy surrounding prostitution in the UK’s society is reflected in the different opinions of courts and tribunals regarding the issue. In Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB), the plaintiff mounted a successful challenge of an infringement of his privacy after the defendant published his alleged involvement in unnatural sexual acts. The court ordered £60,000 in compensatory damages to him. In addition, the ruling in the case of case of Sale v Clear Seal [1995] IT/68718/94 could be construed as one that legitimises prostitution and favours women over men. In this case, the court established that statements of a sexual nature which had been directed to a woman constituted discriminatory acts, despite the fact that her male colleagues had also victims of the sexual remarks. But in the case of Direct Sales Agency v Newcombe [1997] EAT/142/97, the court arrogated itself wider latitude in law to decide what would constitute sexual misconduct. In nutshell, it follows these examples of case law add to the controversy surrounding UK’s anti-discrimination laws16. Conclusion Generally, UK’s anti-sex discrimination laws are complex network of regulations spanning a period of four decades, within which they have been substantially influenced by the EU laws. Under the Equality Act 2010 (SDA Provisions), sex is a protected characteristic and members of either gender have equal rights within the society. The HRA 1998 also seeks to reinforce human rights issues into sex-discrimination laws, by balancing national laws with the EU laws. In light of these laws, public organizations are prohibited from acting in discriminatory ways in their treatment persons based on sex. Regardless, the outcomes of the implementation of the UK body of law are mixed, leaving the citizens with fair protection to count for. Prostitution is also legal in the brothels but illegal in the streets. In the brothels, individuals below the age of 18 are outlawed from providing consensual sexual services. Clients who buy sexual services of a forced prostitute are also doing an illegality. In a nutshell, due to the inconsistency in the interpretation of the laws, cases which constitute violations of sexual rights are decided on case by case by case basis. Bibliography Atkinson, J. L., (2010), ‘Does the Sex Discrimination Act provide a right to work part-time for mothers?,’ Journal of Social Welfare & Family Law, 32(1), pp.47-57 Benedet, Janine, (2013), ‘Marital Rape, Polygamy, and Prostitution: Trading Sex Equality for Agency and Choice?,’ Review of Constitutional Studies, 18(2), pp.161-188 Clarke, Linda, (2006), ‘Harassment, Sexual Harassment, and the Employment Equality (Sex Discrimination) Regulations 2005,’ Industrial Law Journal, 35(2), pp.161-178 Clarke, Linda, (2007), ‘Sexual Harassment Law in the United States, the United Kingdom and the European Union: Discriminatory Wrongs and Dignitary Harms,’ Common Law World Review, 36(2), pp.79-105 Datta, Bishakha, and Post, Dianne, (2013), ‘Should prostitution be legalized?,’ New Internationalist, 461, p.28-30 Johnson, Elizabeth M., (2014), ‘Buyers without remorse: Ending the Discriminatory Enforcement of Prostitution Laws,’ Texas Law Review, 92(3), pp.717-748 McMahon, Nicola, (2010), ‘Sex discrimination in the workplace,’ Caterer & Hotelkeeper, 200(4647), p.52 Parry, Odette, (1990), ‘We dont contravene the sex discrimination act—female,’ Gender & Education, 2(1), p.3 Rabin, Michael S., (1996), ‘Industrial tribunals and the law of sex discrimination in the United Kingdom,’ Labour Law Journal, 47(7), pp.429 Sargeant, Malcolm, (2013), Discrimination and the Law, Routledge, New York, p.99 Smith Ian, Wood, John Crossley, and Baker, Aaron, (2013), Smith & Woods Employment Law, Oxford University Press, Oxford, p.302. Solanke, Iyiola, (2011), ‘Infusing the Silos in the Equality Act 2010 with Synergy,’ Industrial Law Journal, 40(4), pp.336-358 Squires, Judith, (2009), ‘Intersecting Inequalities,’ International Feminist Journal of Politics, 11(4), pp.496-512 Wadham et al., (2012), Blackstones Guide to the Equality Act 2010 Blackstones Guides, Oxford University Press, Oxford, pp.3, 4 Weiss, Deborah, (2010), ‘The annoyingly Indeterminate Effects of Sex Differences,’ Texas Journal of Women & the Law, 19(2), pp.99-172 Yuracko, Kimberly A., (2010), ‘The antidiscrimination paradox: why sex before race?,’ Northwestern University Law Review, 104(1), pp.1-47 Read More