Liberalising Discrimination Law
Why the Equality Act is Unfit for Purpose
By Daniel Freeman and Alex Morton
Over the past six decades our political, philosophical and legal approaches to discrimination have evolved, moving from a laissez-faire attitude to complex legislation that addresses both 'direct' and 'indirect' discrimination.
Some argue now for the complete abolition of anti-discrimination legislation, reverting to free market principles. On the other hand, others argue that we need to go further in attacking indirect discrimination through the law.
This paper makes the case that while liberals can accept outlawing direct discrimination under the concept of equality before the law, or a laissez faire approach, going further than these approaches will invariably lead to bad outcomes.
Progressive structural and anti-racist approaches that treat individuals differently due to their race in order to equalise group outcomes amplify divisions and promote illiberal agendas. Such approaches fail minority individuals who are genuinely disadvantaged and overturn the principle of equal treatment for all individuals before the law.
The Equality Act should return to the roots of earlier legislation, by outlawing direct discrimination focused on individuals rather than remove or reduce gaps between groups. The rest of the Act should be removed from the statute books.
This would be a genuinely liberal but strong anti-discrimination agenda.
In a new Discussion Paper for the Institute of Economic Affairs 'Liberalising Discrimination Law', Daniel Freeman and Alex Morton argue that the UK’s approach to tackling discrimination must be restricted to outlawing direct discrimination, rather than attempting to equalise outcomes between different groups.
This would require stripping back the Equality Act to:
Abolish the concept of indirect discrimination in UK law. Stop allowing for the use of ‘positive action’ in employment and promotion decisions
Stop outlawing different pay for different work deemed as ‘equal value’ by the courts
Repeal the Public Sector Equality Duty. The Act states that public sector bodies must have ‘due regard to the need to... advance equality of opportunity between persons who share relevant protected characteristic and persons who do not’. It also requires a corporate body to encourage participation in public life by a person from a minority in which participation is low
By stripping back these features of the Equality Act, Morton and Freeman argue the state would treat people as individuals, rather than primarily as members of certain groups. The current approach does not support the genuinely disadvantaged and creates a two-tier society.
The paper traces how the UK's intellectual approach to tackling discrimination has evolved through four distinct stages over the past seventy years - from non-intervention, to laws targeting direct discrimination, to measures addressing ‘systemic inequalities’ and ‘indirect discrimination’, and finally to policies aimed at achieving equal outcomes between groups.
The 2010 Equality Act consolidated previous legislation into a comprehensive framework addressing both direct and indirect discrimination and focuses on group outcomes.
Sections of the Equality Act that go beyond banning direct discrimination by allowing claims of indirect discrimination and promoting positive action, which encourages organisations to favour specific groups in hiring and promotion, should be repealed. These measures focus on engineering group outcomes rather than ensuring fairness for individuals.
This approach has had unintended consequences. It takes society away from focusing on individuals and into focusing on group identities, often creating a two-tier relationship where people are treated differently because of their identity. We should not treat people differently due to their sex, race or ethnicity but as equal citizens, the report argues.
Efforts to equalise outcomes at a group level often overlook individuals facing genuine disadvantage, such as coming from low-income backgrounds. It is deeply unfair to promote people who may be well off because they are from a particular group.
Freeman and Morton call for the Equality Act to be stripped back to focus solely on preventing direct discrimination against individuals, removing provisions around indirect discrimination and positive action. This would create a framework that protects individual rights and people from discrimination, rather than focusing on group outcomes, an illiberal approach that damages us all.
Alex Morton, former Director of Strategy at the Institute of Economic Affairs said:
“People should be treated as individuals in a liberal society. The Equality Act does not achieve this and instead in parts promotes group identities in a divisive way. It should be stripped back to only outlaw direct discrimination”
Daniel Freeman, Managing Editor at the Institute of Economic Affairs said:
“Anti-discrimination law was initially intended to shield individuals from unfair acts of direct discrimination but over recent decades it has dramatically widened in scope and ambition. It can increasingly be used as a tool to engineer social outcomes in ways that are illiberal and at times discriminatory. If politicians wish to reverse this mission creep the Equality Act will need to be reformed.”