UK equality law developments Professor Aileen McColgan, Matrix Chambers and Kings College London

the framework  Sex Discrimination Act 1975  Race Relations Act 1976  Disability Discrimination Act 1995  Employment Equality (Sexual Orientation) Regulations 2003  Employment Equality (Religion or Belief) Regulations 2003  Employment Equality (Age) Regulations 2006  Equality Act 2006  Equality act (Sexual Orientation) Regulations 2007  ?Single Equality Act 200*?

forms of discrimination (generally)  direct: not limited to race of complainant or “near relative”  indirect  harassment  victimisation

scope of discrimination law (generally)  employment  education  provision of goods and services  housing  “public functions”

particular issues of interest to Hong Kong (?)  definition of “indirect discrimination”  justification of “indirect discrimination”  UK exceptions to the prohibition on race discrimination  race discrimination and immigration decisions

the RRA’s “old” definition of indirect discrimination  Section 1(1)(b) [A person discriminates against another … if] he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but— (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.

the RRA’s new definition of indirect discrimination  Section 1(1A) A person also discriminates against another if … he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but— (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, (b) which puts that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim.

the significance of the change  “requirement or condition”: Perera v Civil Service Commission  now “provision, criterion or practice ”  Proportions: the need for statistics  now “which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage”  “which is to the detriment of that other because he cannot comply with it” Mandla v Dowell Lee but cf Clymo v Wandsworth  now “which puts that other at that disadvantage”

justification “ which he cannot show to be a proportionate means of achieving a legitimate aim. ”

general exceptions  section 35 [cl 49];  section 36 [cl 12];  sections 37 and 38 [cl 51, 52];  section 39;  section 41;  section 42

Section 39  Nothing … shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of birth or the length of time for which he has been resident in a particular area or place, if the act is done— (a) in selecting one or more persons to represent a country, place or area, or any related association, in any sport or game; o (b) in pursuance of the rules of any competition so far as they relate to eligibility to compete in any sport or game.

Section 40  Nothing … shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of birth or the length of time for which he has been resident in a particular area or place, if the act is done— (a) in selecting one or more persons to represent a country, place or area, or any related association, in any sport or game; o (b) in pursuance of the rules of any competition so far as they relate to eligibility to compete in any sport or game.

Section 41 (1 ) Nothing … shall render unlawful any act of discrimination done [other than on grounds of race or ethnic or national origins] (a) in pursuance of any enactment or Order in Council; or (b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or (c) in order to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment… (2) Nothing … shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom, if that Act is done (a) in pursuance of any enactment or Order in Council; or (b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or (c) in order to comply with any requirement imposed by a Minister of the Crown … by virtue of any enactment; or (d) in pursuance of any arrangements made … by or with the approval of, or for the time being approved by, a Minister of the Crown; or (e) in order to comply with any condition imposed … by a Minister of the Crown.

Section 42  Nothing … shall render unlawful an act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose.

Prohibition on discrimination in exercise of public functions Section 19B (1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination. (1A) It is unlawful for a public authority to subject a person to harassment in the course of carrying out any functions of the authority which consist of the provision of— (a) any form of social security; (b) healthcare; (c) any other form of social protection; or (d) any form of social advantage [other than the provision of goods and services etc]

Prohibition on discrimination in exercise of public functions Section 19B (2) In this section “public authority”— (a) includes any person certain of whose functions are functions of a public nature; but (b) does not include any person mentioned in subsection (3). (3) The persons mentioned in this subsection are (a) either House of Parliament; (b) a person exercising functions in connection with proceedings in Parliament; (c) the Security Service; (d) the Secret Intelligence Service; (e) the Government Communications Headquarters; and (f) any unit or part of a unit of any of the naval, military or air forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions. (4) In relation to a particular act, a person is not a public authority by virtue only of subsection (2)(a) if the nature of the act is private…

section 19B exceptions Section 19C(1) (a) any judicial act (whether done by a court, tribunal or other person); or (b) any act done on the instructions, or on behalf, of a person acting in a judicial capacity. (2) … any act of, or relating to, making, confirming or approving any enactment or Order in Council or any instrument made by a Minister of the Crown under an enactment. (3) … any act of, or relating to, making or approving arrangements, or imposing requirements or conditions, of a kind excepted by section 41. (4) … any act of, or relating to, imposing a requirement, or giving an express authorisation, of a kind mentioned in section 19D(3) in relation to the carrying out of immigration functions.

section 19D immigration (1) Section 19B does not make it unlawful for a relevant person to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration functions. (2) For the purposes of subsection (1), “relevant person” means— (a) a Minister of the Crown acting personally; or (b) any other person acting in accordance with a relevant authorisation. (3) In subsection (2), “relevant authorisation” means a requirement imposed or express authorisation given (a) with respect to a particular case or class of case, by a Minister of the Crown acting personally; (b) with respect to a particular class of case (i) by any of the enactments mentioned in subsection (5) [Immigration and related Acts, European Communities Act 1972, any provision of Community law which relates to immigration]; or (ii) by any instrument made under or by virtue of any of those enactments

immigration  R (on the application of European Roma Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1

feeling the strain?  R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307