edf - justice - positive action - robin allen qc1 reflections on positive action in the united...
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EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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Reflections on Positive Action in the United Kingdom
ROBIN ALLEN QC
CLOISTERS
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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PARLIAMENT’S RELUCTANCE TO SPEAK OF POSITIVE ACTION No use of “positive action” in any primary
legislation at all Reference to “positive action” in the
explanatory memorandum for the Sex Discrimination (Election Candidates) Act 2002
First explicit use in the Religion and Belief, Sexual Orientation and Age Regulations
Consistent with overall poor connotation of positive discrimination
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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POST – WAR POSITIVE OBLIGATIONS FOR DISABLED Disabled Persons Employment Act had
obligation on large employers to appoint quotas of registered disabled persons
Lesson to be learnt from ultimate failure of this legislation – Not time limited to period post war Depended on disabled persons willing to
register Poor enforcement of quota system Dead letter long before Act repealed
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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POSITIVE ACTION THROUGH ENFORCEMENT OBLIGATIONS Tribunal powers under Sex Discrimination
Act 1975 and Race Relations Act 1976 to make remedial recommendations enforceable by financial penalties
Appeal court rulings that these could not be used as a form of positive action because of the connotation of positive discrimination
Now rarely used
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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GENUINE OCCUPATIONAL REQUIREMENTS Defence to discrimination complaints in the
employment field where genuine occupational requirement proved
Reason for the requirement may lie in genuine need to provide services to a disadvantaged group
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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POSITIVE ACTION THROUGH TRAINING Sex Discrimination and Race Relations
Acts permit positive action in targetting training
Must be evidence of under-representation Note no obligation to act Unsatisfactory limits on these provisions
since they do not permit employment
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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POSITIVE ACTION THROUGH MAINSTREAMING No general mainstreaming obligation in the
UK Section 71 RRA - first provision to impose
an obligation on local authorities to promote equality and good relations
Relatively weak obligation – to “have due regard”
Strength of obligation now lies in the detail of delegated legislation and Codes of Practice on public equality duties
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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POSITIVE ACTION AND SUNSET CLAUSES Compliance with international
standards on “special measures” Sex Discrimination (Election
Candidates) Act 2002 Northern Ireland Policing Legislation
EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC
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POSITIVE ACTION HOT SPOTS
Ethnic minority disadvantage and the problems of definition
Mismatch between public perceptions of what ought to be permissible and what is – MOBO, Black Business Awards, Women’s Literature Prizes, Police Recruitment and Retention
Lack of unifying theory about purpose of positive action
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POSITIVE ACTION AND EQUALITY ACT 2006
A changing concept of equal opportunity with greater emphasis on
individuality, multiple identities, mutual respect, and dignity.
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POSITIVE ACTION AND THE NEW FEDERALISM Already different approaches in
Northern Ireland to Great Britain Equality Act 2006 recognises
importance of differences between Scotland Wales and England
Will this lead to different regional approaches?
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SOME KEY TASKS A clearer idea about when positive action
should be mandatory and when it is permissive
Expanding the limits of what is permissible to the furthest under EC and international law norms
Clarifying the relationship between mainstreaming and positive action
Addressing multiple disadvantage Strengthening Tribunal/Court remedial
powers