Anti-discrimination Law and Constitutional Law of the European Union - Research Paper Example

Anti-discrimination Law and Constitutional Law of the European Union Introduction Anti-discrimination laws in the United Kingdom have been in place in order to protect the people against unfair treatment by reason of their race, their religion, their gender, and their beliefs. These laws set forth equal opportunities in employment, social services, and other similar opportunities and services for all people regardless of their race, gender, or creed. These laws have served the interests of the people in the United Kingdom, ensuring that people of different races, creed, and religion can co-exist harmoniously with each other. In some instances however, these laws have not completely served the interests of the people. Many people have suffered all manners of discriminatory practices from other people but were not given any reprieve through the laws. For this reason, some interest groups have sought for the reform of these anti-discrimination laws. They proposed stricter provisions and more stringent applications of the laws. These proposals however have not been met with favour from other interest groups. They favour the current anti-discrimination laws and deem such laws as sufficient provisions for the protection of the people’s civil liberties. In light of the above positions set forth by opposing groups, this paper shall discuss whether or not the government should rethink its plans to reform UK’s anti-discrimination laws. Proposed Reform The proposed reform of UK’s anti-discrimination laws represents changes and reforms in the legislative framework. These proposed reforms seek to harmonise about 30 years worth of anti-discrimination laws. They also seek to create challenges and new measures in anti-discrimination efforts in the workplace and in services offered by the state and private institutions. And these reforms will eventually bring about changes and challenges for implementing bodies and agencies. One of the new duties streamlined by the public sector is meant to replace the existing duties on gender, race, and disability. This new duty will call on public authorities to exercise functions and have due regard for the elimination of discrimination, harassment, victimisation and other discriminatory conducts; for the advancement of equal opportunities between people who share protected characteristics and other people who do not share it; and for fostering good relations between people who share a protected characteristic and people who do not share it (Kenyon, 2009). Some interest groups point out that there is a need to harmonise the different bodies addressing the different strands of discrimination. It is an inevitable and expected fact that costs for compliance would increase in the implementation of these reforms. Changes in the areas of sexual preferences and religious preferences are also expected to arise from reforms in the anti-discrimination laws. Based on the gender pay gap, the suggested reform expects to prevent pay secrecy clauses. These pay clauses prevent employers from trying to prevent employees from discussing their pay. Public agencies which have more than 150 employees are required to provide annual details of gender pay gaps, ethnic minority, and disability employment rates. And latest figures from Tribunal Service indicate that equal pay claims have been increasing. Consequently, this bill puts pressure on concerned authorities to disclose information on the payment rates of their employees (Kenyon, 2009). Provisions on positive action have not been met with welcome arms by the public. Accounts of positive action have often been misunderstood and exaggerated. Under suggested reforms, employers are now allowed, where appropriate, to take under-representation into account when it comes to selecting for appointment or promotion between two equally qualified candidates. The reform does not however allow employers to make their decisions while disregarding the merit of each candidate or use a policy automatically favouring individuals from less represented groups. This suggested reform has yet to find clear affirmation and support from the public because of the obvious conflicts between positive discrimination and fostering good relations in the company (Kenyon, 2009). In terms of age discrimination, the suggested reforms will extend the prohibition against age discrimination to the issuance of goods, facilities, services, and the exercise of public functions for citizens aged 18 or over (Kenyon, 2009). The Single Equality Bill would seek to reunite about nine laws and around 100 pieces of ancillary legislation in order to make the law clear and effective. The bill would also unwind the industry created by lawyers; it also seeks to point employers to the real task of raising equality in more beneficial ways to fit the needs of employees (BBC News, 2007). Analysis of the provisions of the Single Equalities Bill There are various criticisms from interest groups and other parties regarding the provisions of the Single Equalities Bill. First and foremost, they point out that the proposed reform focuses on the equality of public services and employment without taking into account the interplay between race and law enforcement (Commission for Racial Equality, 2007). The enforcement of the criminal justice system has had a history of discriminatory enforcement practices against racial minorities. This was seen in the Stephen Lawrence case where police enforcers were negligent during their investigation of the case. Lord MacPherson, who later took over the adjudication of the case, discovered how police racial discrimination coloured and affected the progress of the investigation and the proceedings of the case (Tuitt, 2004, p. 37). Throughout the years, many police officers have been practising racial stereotyping. They only target the racial minorities for their stop and search routines, and given a choice between an arrest and a reprimand, the police officer is likely to arrest the black offender and only reprimand the white British offender (Maguire, et.al., p. 437). Critiques also claim that the provisions of the Single Equality Bill seem to only be fiddling with issues of equal pay and age discrimination. Issues involving refusal in the issuance of credit cards and loans for elderly people and those involving women who are breastfeeding in public are also some of the issues which the Green Paper seeks to settle and address (Garry, 2008). Many groups and individuals however are not impressed with the provisions of the Single Equality Act. They point out that a stricter implementation of the provisions of the law is still needed in order to achieve the goals of the Bill. These groups criticise how planes and ships are still not included in the equal access laws and there are still no measures or remedies making it easier to bring lawsuits against one’s boss. They point out how stricter implementation of the anti-discrimination laws is needed in order to curtail the repeated violations of the laws by corporations and employers (BBC News, 2007). And according to opponents of reform, this stricter implementation of existing laws is what is actually needed, not the reform of the anti-discrimination laws. The Commission for Equalities and Human Rights point out how equal opportunities to membership in local clubs is not available; but the CEHR emphasizes that efforts to provide equal opportunities to men and women in the social scene should go beyond mere membership in the local clubs. In sports activities, the UK has gone through several instances when participation and membership by women in some sports activities were prohibited. This was seen in the case of Deirdre Nelson v. The Boxing Union of Ireland, where alleged medical standards for membership imposed on a female applicant was ruled to be a gender-based stereotype (Cotter, et.al., 2004., p. 81). Discrimination in the workplace has also been rampant in various employment circles in the UK. Interest groups point out that current rate of changes in salary rates for men and women would most probably take about 140 years to reach equal footing. The government has not made strong and definite changes towards making sure that men and women are paid and treated equally in the workplace. The EC Commission v. UK case which gave rise to the Equal Pay Regulations helped set standards for the salary and remuneration of employees. Although this regulation has been in effect since the 1970s, there have still been many complaints and cases filed on unequal pay between men and women and between employees performing similar work (Grant, 2002, pp. 76-79). Position Despite criticisms, the government should not abandon its efforts to reform the anti-discrimination laws. The creation of the Single Equality Law will create a clearer and more effective legislative framework for us to follow and to base our activities on. The Single Equality Bill will help codify the grounds for the prohibitions imposed on the citizens. This code will also harmonise myriad provisions from a variety of enactments that revolve around one topic or prohibition. Through the Single Equality Bill, there will also be a single public sector equality duty. There is a more united effort to achieve the duties and requisites of equality for the different sectors of society. This bill will also help set strategic equality objectives for the different groups in society and for the National Government. It will help bring about the emphasis on positive action in order to improve workforce representation from different groups in society (Citizen’s Advice, 2007). A Single Equality Bill is a chance to set the anti-discrimination provisions right. As our society is becoming more global and diverse, there is a need to update and reform the provisions of our anti-discrimination laws. Without reforms in our anti-discrimination laws, the poverty levels in would remain at 40% for the ethnic minorities. These figures are more than double for the white British people. Age and gender issues need also to find better protection under the laws because prostitution is rampant in the state; and those who are under 16 are being coerced to work as prostitutes; violent and illegal practices in the job markets are also still very much common in our society (Citizen’s Advice 2007). Reports from the National Statistics indicate that white men and women are more likely to be gainfully employed as compared to those who belong to racial minorities (Connolly & Smith, 2004, pp. 25-26). Considering the above instances, there is a great need for more specific and codified provisions against discrimination. In our justice system, recent reports have revealed that there are more young black males in the criminal justice system. Most of them are also in the 10-17 age range. They are also most likely to be stopped by police officers for routine checks and more likely to suffer unconditional bail. They also tend to receive harsher penalties than the young white offenders (Citizen’s Advice, 2007). Again, as was illustrated in the Stephen Lawrence case, our present justice and legislative system leaves too many holes and opportunities for unpunished violations. There are a disproportionate number of blacks and other racial minorities in our prisons. The murder of Zahid Murabek in prison is considered a racist crime rooted in institutional racism very much prevalent in the prison systems. Various researchers even attest to the fact that white prisoners are more likely to receive better jobs in prison as compared to the African-Caribbean inmates (Carrabine, et.al., 2004, p. 304). There is a need to reform the anti-discrimination laws because the elderly population is very vulnerable under the currently existing anti-discrimination laws. About 1.2 million elderly citizens are actually excluded on three or more indicators of social exclusion; one in three aged people over the age of 80 excluded from basic services; 16% of elderly people are poor and 70% of those above 65 are suffering from chronic illnesses. One quarter of those who are above 80 years of age suffer from serious disabilities. And finally, of those who are over 90 years of age, 27% are in need of residential or nursing home care. Reforming our present anti-discrimination laws will help make possible sturdier and more encompassing laws for our elderly population (Citizen’s Advice, 2007). Many interest groups insist that, in UK, elderly citizens are often viewed as a burden to society. And this stereotyping “has perpetuated social and political discrimination and highlighted that elderly people have been subjected to...abuse...” (Webster, 1999, as quoted by Holland, et.al., 2003, p. 53). In order to address proposals to harmonise public sector duties which are weak and ineffective, some advocates suggest that public authorities have a duty to promote equality and address discrimination. By proposing responsibilities for a single part in several priority areas, there would be a possible weakening in the entirety of the public sector duties. The public would be prompted to choose the parts they would support and the parts they would discard (Citizen’s Advice, 2007). The Single Equality Bill should work to conglomerate collective duties for the people in order to create harmony and equal protection. This bill will help overhaul UK legislation on discrimination and ensure a more proactive approach to equality. Through this bill, employers would be obligated to promote equality in the workplace and as a means of prevention, not litigation. Diversity would be valued more as a part of the workplace and of society in general (Kirton & Greene, 2005, p. 151). The government should not reconsider its plans to reform the anti-discrimination laws because the bill will tie in the loose ends of previous laws while still providing new and more comprehensive protection for the people. The objective justification test that will be provided through the Single Equality Bill would replace the different tests being currently used in the employment process. The bill will provide unbiased and set standards that each employer or service provider is obligated to follow. These testing standards would be the same for all individuals, and employers would have to justify why they would not use the standards set by the government. The Single Equality Bill would also be a chance to remedy the Malcolm case because new ways to claim for disability would be introduced. Failure to claim under disability-related discrimination would be given a chance to be repaired and remedied in order to protect the disabled. Adjustments by service providers through the Single Equality Bill shall also be made easier; claims from service providers would also be eased by this bill (Tyrer, 2009). Direct discrimination and harassment based on association would be considered unlawful under the Single Equality Bill. This would cover employment, education, and other social services. This bill would implement the decision of the European Court based on the Coleman v. Attridge Law, and even beyond its provisions. The bill would also impose a single equality duty on public bodies – for them to embrace personal peculiarities and preferences which may cover sexual orientation, religious belief, race, disability, and gender (Tyrer, 2009). The addition of police reforms in the Single Equalities Bill are clear and fortunate steps towards achieving a less discriminatory criminal justice system. Many interest groups point out how the existing anti-discrimination laws could not adequately curtail discrimination in the criminal justice system, and this, even after the Stephen Lawrence case already gained nationwide interest. The Single Equality Bill is a chance to modernise and reform the system, and to make it more compliant with the needs of the people (Powell, 2008, p. 11). Through the Single Equality Bill, improved transparency is now a better possibility. Through this transparency, public authorities would be obliged to report disability employment rate; government authorities would also be obligated to provide greater transparency in their actions; and public bodies would be pressuring private sectors to be more transparent in their actions through public procurement policies (Tyrer, 2009). Despite various criticisms and objections to the implementation of reform for the anti-discrimination law, the government should not rethink its plans to reform the anti-discrimination laws. There is a need for the government to come up with a more cohesive anti-discrimination law. The time is ripe for the government to impose higher standards in the fight against discrimination. The previous and current anti-discrimination laws are not effectively protecting the civil liberties of the people. The objections and points being raised by those who oppose the reform can be remedied and accommodated in the new Single Equality Bill. Harmony in the various imposed laws can be achieved through this bill, and through the concerted efforts of a united people. Works Cited Carrabine, E., et.al. (2004) Criminology. London: Routledge Connolly, M. & Townshend-Smith, R. (2004) Townshend-Smith on discrimination law. London: Routledge Cavendish Cotter, A., et.al. (2004) Regulatory Law Professional Practice Guide. London: Routledge Cavendish CRE Briefings on a ‘Framework for Fairness: Proposals for a Single Equality Bill for Great Britain’. (n.d) Commission for Racial Equality. Retrieved 19 July 2009 from http://83.137.212.42/sitearchive/cre/downloads/dlr_paper1.pdf Discrimination Law Review: A Framework for fairness: Proposals for a single equality bill for Great Britain. (August 2007) Equality and Diversity Forum. Retrieved 19 July 2009 from http://www.edf.org.uk/news/Rotaresponsefinal.pdf Discrimination Law review: Framework for Fairness (21 September 2007) Citizen’s Advice. Retrieved 19 July 2009 from http://www.citizensadvice.org.uk/index/campaigns/social_policy/consultation_responses/cr_equalitydiversitydiscrimination/discrimination_law_review-3 Equality law should go further. (12 June 2007) BBC News. Retrieved 19 July 2009 from http://news.bbc.co.uk/2/hi/uk_news/politics/6742955.stm Garry (11 April 2008) Breastfeeding in public will be a woman’s right. Breastfeeding Resources. 19 July 2009 from http://www.breastfeeding.co.uk/index.php?option=com_content&view=article&id=319:breastfeeding-in-public-will-be-a-womans-right&catid=36:uk-news&Itemid=11 Grant, B. (2002) Employment Law. London: Thomson Learning Holland, K., et.al. (2003) Applying the Roper-Logan-Tierney model in practice. China: Elsevier Health Science Kenyon, R. (11 June 2009) Single equality bill: consultation begins. Guardian Public. Retrieved 19 July 2009 from http://www.guardianpublic.co.uk/single-equality-bill Kirton, G. & Greene, A. (2005) The dynamics of managing diversity. Oxford: Elsevier- Butterworth Heinneman Maguire, M., et.al. (2007) The Oxford handbook of criminology. Oxford: Oxford University Press Powell, M. (2008) Modernising the welfare state. UK: Policy Press Tuitt, P. (2004) Race, law, resistance. London: Glass House Press Tyrer, A. (20 July 2009) Equality Bill. Stammering Law. Retrieved 19 July 2009 from http://www.stammeringlaw.org.uk/changes/sea.htm Constitutional Law of the European Union Barry can have legal recourse under Article 234 of the EC Treaty. The Accidents Tribunal cannot summarily rule against him because the EC Treaty has legal precedence and jurisdiction over the case. According to Article 234 of the EC Treaty, the European Court of Justice has the jurisdiction to conduct preliminary hearing on the validity and the interpretation of the acts of the community. It shall also have jurisdiction for cases pending before the court or the tribunal of a member state against whose decisions there is no legal remedy (Article 68:1 EC Treaty). The legal question being raised by Barry has something to do with appropriate remedies that he may use in his favour. The head of the Accident Tribunal had no jurisdiction in ruling summarily against Barry. Barry has the right to seek recourse under the ECJ which has jurisdiction to rule on cases before tribunals whose decisions are considered final. He also has the right to bring an individual action before the ECJ because he is challenging a decision which pertains to him (Slapper & Kelly, 2009, p. 155). In the case of Bulmer v. Bollinger, the ECJ set standards which the lower courts are bound to follow. The ECJ emphasized that the decision in the lower courts has to be considered final; the community court may choose to follow a previous ruling of the ECJ on the same point; the lower court cannot make a decision based on acte clair, when it is clear that there is room for doubt on the case; and finally it is best to decide the facts first before deciding on the case (as quoted by Slapper & Kelly, 2009, p. 155). The decision set by the Accident Tribunal is considered final against Barry, however, Article 234 of the EC Treaty can be used to countermand the decision of the Accident Tribunal. The tribunal also declared the case as acte clair, when clearly there was room for doubt. And the tribunal did not clearly study the facts of the case; it just made a summary judgement based on its initial assessment of the case. And as it were, Article 234 provides for the venue for cases which have lost in these tribunals. A preliminary hearing will help initially assess the merits of Barry’s case. The judge ruling in the Accidents Tribunal cannot refuse the right of Barry to be heard and to be adjudicated under the European Court of Justice. The decision in a previous case decided under Article 234 EC Treaty is a possible precedent to his case. Barry deserves at least a preliminary hearing under Article 234 in order to decide if his case may be considered an accident at work. The court may later decide if his case has similar circumstances as the previously decided case. Although, the directive seems to prohibit Barry from seeking recourse for his grievance under the ECJ, the provisions of Article 234 of the EC Treaty are clear cut provisions that give Barry a chance to claim compensation for his injuries. The provisions set by member states under the European Union are overruled and are subservient to the provisions of the EC Treaty. The decision of the judge ruling in the Accident Tribunal is not valid because his ‘strong feelings’ about the validity or invalidity of the Directive on accidents at work are not valid and binding reasons that may be used against participants seeking redress for their grievances. The job of the judge is to implement the provisions of the law regardless of his personal feelings on the validity of the law he is implementing. The judge has an obligation of impartiality which he is required to apply to all cases that pass through his chambers (Barnett, 2002, p. 900). Therefore, Barry can file his case under the ECJ based on Article 234 of the EC Treaty. After failing to gain a favourable decision from the Accident Tribunal, Barry has the right to forward his complaint for proper adjudication with the ECJ based on the precedents set by the court and on the provisions of Article 234 of the EC Treaty. The opinions of the judge on the invalidity of the Directive on accidents at work are not sufficient grounds for the refusal of the Accident Tribunal to forward the case to the ECJ. With proper assessment and legal perusal, Barry’s case may still indeed be considered a work-related accident. Works Cited Barnett, H. (2002) Constitutional and administrative law. London: Cavendish Chalmers, D. & Tomkins, A. (2007) European Union Public Law. Cambridge: Cambridge University Press. Slapper, G. & Kelly, D. (2009) The English Legal System. Oxford: Routledge Cavendish Read More