A few thoughts from America, where this road was first lain (sorry). Note, I’ve only briefed myself the barest amount on some of your laws, but the shapes seem familiar enough.
On section 158 & 159 of the Equality Act 2010, it may be viable for some enterprising lawyers to hasten their repeal by suing discrimination under them on behalf of minority plaintiffs for harmful outcomes stemming from benevolent intentions. This is likely to get sticky as the deck is stacked. If, for example, a minority admission is disciplined for lack of competence, he would most likely sue against the discipline rather than the lower admission bar leading to inevitable discipline. This is where the enterprise of the lawyers comes in, in convincing their clients that the stacked deck worked against them all the way to the bottom. The upside is, as long as “indirect discrimination” is loosely defined in Section 19, the plaintiff lawyers have loads of wiggle room.
On that note, if British law remains anything like American law, I’d caution that the word “proportionate” is probably bearing a lot of load. Your observation that public safety is always legitimate is a sound argument but it may be barking up the wrong tree. “Proportionate” is the kind of word that brings down armies of social workers where a handful of unhampered police would do, all in the name of “but did you try every alternative?”
What you’re doing here, writing the case out and publishing, is the right move. You never know which word will catch like a wildfire.
Not the easiest, but it's not too terribly hard to convince people that their own mistakes are the fault of someone letting them get away with it. It would probably be most likely to occur in a class-action format. It would have to be a clever case, something perhaps not entirely in the hands of the defending institution, maybe arising from customer complaints, for example. The lawyer who takes it would have to be proactively looking for the right case. That's where the enterprise of lawyers comes in.
I am not a lawyer--I should that make clear if I haven't--but I like to follow legal topics. I don't generally foray into overseas stuff, but thanks to your handy link, I was able to delve right into Equality Act 2010. I found there is parallel language to Section 19 also in §13 sub. (2) applying "proportionate means of achieving a legitimate aim" directly to age, and again in §15 sub. (1)(b) applied directly to disability. (It appears all over later parts, too, but the early sections are the more general sections.) So my American knee-jerk reaction might be misguided.
That said, "proportionate means" never gets a direct definition and as far as I can tell from other sources, it's basically legalese for "a good enough reason." To speak a little further on "legitimate aim," which is another term that seems a bit more uniquely British, it's pretty clear that wherever it appears in the Equality Act 2010, it is to assert that legitimacy of an aim is *not*, of itself, a defense against discrimination claims. Taken together, I think what I've learned that the phrase "proportionate means of achieving a legitimate aim" is a singular term of art that more or less is the government's way of saying "we'll decide whether you had a good enough reason for doing what you did, mate." So, my answer your question is, not only will it be twisted in practice, the term may as well have threads on it.
Seems to me that "a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if ... A cannot show it to be a proportionate means of achieving a legitimate aim." indicates that a proportionate means of achieving a legitimate aim is a defence against discrimination claims?
Right, but it must be understood as a two-part defense. A defendant doesn’t just have to prove legitimacy *or* proportionality, he must prove both. The preposition “of” shows the former (proportionate) to be dependent on the latter (legitimate). Thus if the legitimacy defense fails, the proportionality defense is moot. IIRC, I believe I came across public safety or something similar explicitly named as a legitimate aim. So for your article’s example, one down, one to go.
I’ve had a little more time with this and I think my American read is more or less right about British intent. As I understand the clause in context and purpose, “proportionate” refers to whether bearers of particular traits are affected at rates different to those not bearing those traits if those traits happen to be of a protected characteristic. It is not the same sense of “proportionate” as you might see in a self-defense claim, where the defendant must show he did not respond to force with excessive counterforce.
(Overall, the language here really stinks. I have to be very thoughtful to make sure I’m saying what it is I mean to say—and I’m still not certain I have. That’s a big part of why this area is such a mess. So I’m very much with you on cleaning up the terms.)
The “proportionate” language effectively makes it so that even if police respond to each public safety matter on an individual case basis, if we come to find by their methods that Mother Nature placed violent schizophrenia upon too many Asians and not enough Europeans for our liking, that becomes a matter for the law to correct. And since we Westerners are, for now, still not too keen on locking up healthy, nonviolent people just to keep quota, that means adjusting the method such that it lets more nut-jobs go.
All of this is just to say that, while it certainly would not hurt to clarify the meaning of “legitimate aims,” I believe it is the word “proportionate” that is doing most of the dirty work. By combining the two in a cut-and-paste clause, lawmakers have not encapsulated a discrete concept so much as they have muddied the constituent concepts while making it harder to clean up either.
Though it might seem superficial, any such movement would probably have to come up with a better name for what it seeks to expunge than "anti-racism", as it'll immediately be met with accusations that anyone anti-anti-racism must naturally be pro-racism, which as you say is perhaps our society's biggest taboo. Might be worth framing it as a pro-meritocratic drive or something similar for now for the sake of better "branding".
Yes it is really about restoring accuracy and meritocracy, so that's how I'd title the inquiry+policy changes were I actually in government. I do think there is value in pushing back against the concept itself, but I agree such an effort is easy to attack on the grounds of being pro-racism.
Reminds me of when somene on Reddit took a picture of sticker that said "Anti Antifa" following the Unite the Kingdom rally and the whole thread became a chorus of people saying "This is proof that Tommy Robinson supporters are fascists". As far as they were concerned, "antifa" is just shorthand for "antifascism" so how can anyone possibly be anti-antifa?
I remember a similar furores over people saying they didn't support BLM.
Good suggestions, with the caution that any alteration of the Equality Act involves risk - many parliamentarians, I'm sure, would like to write women out of the Act to reverse the recent Supreme Court ruling in favour of women's rights. Come to think of it, on that subject: the Act was deliberately misinterpreted for a decade and will continue to be ignored, it'll take years of lawfare to force compliance. So we'll have to be prepared for institutions across the board to pretend they can't understand the plain meaning of the amended law, and some that provide important services will happily bankrupt themselves in the process.
This does strike me as a temporary solution that ultimately would get circumvented.
Don’t get me wrong changing the incentive system is vital. But the issue is many of the people functioning within this system are the Zealots of Progressive ideology.
To some degree you need to perform some conversion for part of this governing elite in order to ensure no reversals or circumnavigation takes place.
A few thoughts from America, where this road was first lain (sorry). Note, I’ve only briefed myself the barest amount on some of your laws, but the shapes seem familiar enough.
On section 158 & 159 of the Equality Act 2010, it may be viable for some enterprising lawyers to hasten their repeal by suing discrimination under them on behalf of minority plaintiffs for harmful outcomes stemming from benevolent intentions. This is likely to get sticky as the deck is stacked. If, for example, a minority admission is disciplined for lack of competence, he would most likely sue against the discipline rather than the lower admission bar leading to inevitable discipline. This is where the enterprise of the lawyers comes in, in convincing their clients that the stacked deck worked against them all the way to the bottom. The upside is, as long as “indirect discrimination” is loosely defined in Section 19, the plaintiff lawyers have loads of wiggle room.
On that note, if British law remains anything like American law, I’d caution that the word “proportionate” is probably bearing a lot of load. Your observation that public safety is always legitimate is a sound argument but it may be barking up the wrong tree. “Proportionate” is the kind of word that brings down armies of social workers where a handful of unhampered police would do, all in the name of “but did you try every alternative?”
What you’re doing here, writing the case out and publishing, is the right move. You never know which word will catch like a wildfire.
I imagine it would be hard to find plaintiffs willing to sue for harmful outcomes stemming from benevolent intentions!
Not sure what you mean re proportionate exactly, you mean that the meaning of the word would inevitably be twisted in practice?
Not the easiest, but it's not too terribly hard to convince people that their own mistakes are the fault of someone letting them get away with it. It would probably be most likely to occur in a class-action format. It would have to be a clever case, something perhaps not entirely in the hands of the defending institution, maybe arising from customer complaints, for example. The lawyer who takes it would have to be proactively looking for the right case. That's where the enterprise of lawyers comes in.
I am not a lawyer--I should that make clear if I haven't--but I like to follow legal topics. I don't generally foray into overseas stuff, but thanks to your handy link, I was able to delve right into Equality Act 2010. I found there is parallel language to Section 19 also in §13 sub. (2) applying "proportionate means of achieving a legitimate aim" directly to age, and again in §15 sub. (1)(b) applied directly to disability. (It appears all over later parts, too, but the early sections are the more general sections.) So my American knee-jerk reaction might be misguided.
That said, "proportionate means" never gets a direct definition and as far as I can tell from other sources, it's basically legalese for "a good enough reason." To speak a little further on "legitimate aim," which is another term that seems a bit more uniquely British, it's pretty clear that wherever it appears in the Equality Act 2010, it is to assert that legitimacy of an aim is *not*, of itself, a defense against discrimination claims. Taken together, I think what I've learned that the phrase "proportionate means of achieving a legitimate aim" is a singular term of art that more or less is the government's way of saying "we'll decide whether you had a good enough reason for doing what you did, mate." So, my answer your question is, not only will it be twisted in practice, the term may as well have threads on it.
Seems to me that "a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if ... A cannot show it to be a proportionate means of achieving a legitimate aim." indicates that a proportionate means of achieving a legitimate aim is a defence against discrimination claims?
Right, but it must be understood as a two-part defense. A defendant doesn’t just have to prove legitimacy *or* proportionality, he must prove both. The preposition “of” shows the former (proportionate) to be dependent on the latter (legitimate). Thus if the legitimacy defense fails, the proportionality defense is moot. IIRC, I believe I came across public safety or something similar explicitly named as a legitimate aim. So for your article’s example, one down, one to go.
I’ve had a little more time with this and I think my American read is more or less right about British intent. As I understand the clause in context and purpose, “proportionate” refers to whether bearers of particular traits are affected at rates different to those not bearing those traits if those traits happen to be of a protected characteristic. It is not the same sense of “proportionate” as you might see in a self-defense claim, where the defendant must show he did not respond to force with excessive counterforce.
(Overall, the language here really stinks. I have to be very thoughtful to make sure I’m saying what it is I mean to say—and I’m still not certain I have. That’s a big part of why this area is such a mess. So I’m very much with you on cleaning up the terms.)
The “proportionate” language effectively makes it so that even if police respond to each public safety matter on an individual case basis, if we come to find by their methods that Mother Nature placed violent schizophrenia upon too many Asians and not enough Europeans for our liking, that becomes a matter for the law to correct. And since we Westerners are, for now, still not too keen on locking up healthy, nonviolent people just to keep quota, that means adjusting the method such that it lets more nut-jobs go.
All of this is just to say that, while it certainly would not hurt to clarify the meaning of “legitimate aims,” I believe it is the word “proportionate” that is doing most of the dirty work. By combining the two in a cut-and-paste clause, lawmakers have not encapsulated a discrete concept so much as they have muddied the constituent concepts while making it harder to clean up either.
Though it might seem superficial, any such movement would probably have to come up with a better name for what it seeks to expunge than "anti-racism", as it'll immediately be met with accusations that anyone anti-anti-racism must naturally be pro-racism, which as you say is perhaps our society's biggest taboo. Might be worth framing it as a pro-meritocratic drive or something similar for now for the sake of better "branding".
Yes it is really about restoring accuracy and meritocracy, so that's how I'd title the inquiry+policy changes were I actually in government. I do think there is value in pushing back against the concept itself, but I agree such an effort is easy to attack on the grounds of being pro-racism.
Reminds me of when somene on Reddit took a picture of sticker that said "Anti Antifa" following the Unite the Kingdom rally and the whole thread became a chorus of people saying "This is proof that Tommy Robinson supporters are fascists". As far as they were concerned, "antifa" is just shorthand for "antifascism" so how can anyone possibly be anti-antifa?
I remember a similar furores over people saying they didn't support BLM.
Good suggestions, with the caution that any alteration of the Equality Act involves risk - many parliamentarians, I'm sure, would like to write women out of the Act to reverse the recent Supreme Court ruling in favour of women's rights. Come to think of it, on that subject: the Act was deliberately misinterpreted for a decade and will continue to be ignored, it'll take years of lawfare to force compliance. So we'll have to be prepared for institutions across the board to pretend they can't understand the plain meaning of the amended law, and some that provide important services will happily bankrupt themselves in the process.
Make Nathan Cofnas Equality Commissioner.
Whatever the purpose may be, your mock-up looks very nice.
This does strike me as a temporary solution that ultimately would get circumvented.
Don’t get me wrong changing the incentive system is vital. But the issue is many of the people functioning within this system are the Zealots of Progressive ideology.
To some degree you need to perform some conversion for part of this governing elite in order to ensure no reversals or circumnavigation takes place.
That's what I'm getting at in the last section, about the power of ideas and changing minds.