1. Positive Action and Social Inclusion Hugh Collins London School of Economics

2. Problems with Equality 1. Variety of meanings: equal treatment, equal outcomes, equal opportunities (and lots of shades of meaning within these broad categories) 2. Conflicts between each type: equal treatment prevents equal outcomes; equal outcomes violates equal treatment. 3. Equal opportunities conceptually flawed by problem of regression: is education and training an outcome or an opportunity? Is an entry level job an outcome or an opportunity? 4. Equal treatment reinforces differences in opportunities and lacks a theory of what should count as a relevant differences and irrelevant differences eg obesity. 5. Equal outcomes are not in fact generally desired as a goal: fairness rather than egalitarianism is the model of social justice being sought. Equality is an aspect of fairness, but also inequality is desired on the ground of fairness to reward ‘merit’ and to accommodate freedom to choose a way of life.

3. Origins of Emphasis on Equality 1. USA constitutional framework required validation and development of law in line with the equal treatment clause of the constitution. 2. No equivalent US protection for social and economic rights, such as the right to work that could have provided basis for intervention in the labour market, both to forbid discrimination and to promote positive action. 3. UK imported US model in 1970s (with some development), but crucially based upon the equality model. That model has now spread to the EU and elsewhere. 4. Equal treatment basis of law has always presented obstacles to affirmative action and other types of positive measures in both the US and the UK.

4. Alternatives to Equality? Diversity is at bottom a functional utilitarian argument that suggests that institutions (universities, police, parliament, businesses, law firms) will perform better/more competitively if their members come from diverse backgrounds or are representative of the population as a whole. Evidence?

5. Alternatives to Equality? Social Inclusion has aim of eradicating social exclusion. The socially excluded are those who are effectively prevented from participating in the benefits of citizenship or membership of society by a combination of barriers including poverty, poor educational opportunities, membership of a disfavoured racial minority, an inaccessible location, responsibility for family dependants, etc. Social inclusion aims to achieve minimum levels of welfare for all targeted groups (eg child poverty, unemployed youth) not to achieve equality of outcomes for all. Social inclusion requires more than equality of opportunities, because it requires the result of social inclusion, not just an improvement of life-chances, which entails welfare to work measures and the emphasis on in-work benefits (working tax credits). Social inclusion is aimed fundamentally at social cohesion or a stable social order (tough on the causes of crime, emphasis on deliberative participatory democracy).

6. Implementing Social Inclusion Positive discrimination has been prevented by the equal treatment heritage from the USA. But measures for social inclusion require: (a) a justification defence for direct discrimination, under which positive action in favour of a particular group can be justified by reference to a legitimate aim (ie eradicating exclusion) provided the measure is necessary and proportionate. (b) some positive duties of ‘reasonable adjustment’ as in disability discrimination.

7. Implications in Practice James v Eastleigh : concessions for public services not to make society more equal, but to ensure access to public facility for the poor or those unable to afford access. Free bus passes for the over 59 justifiable age discrimination