X

Create an account to continue reading.

Registered readers have access to our blogs and a limited number of magazine articles
For unlimited access to The Spectator, subscribe below

Registered readers have access to our blogs and a limited number of magazine articles

Sign in to continue

Already have an account?

What's my subscriber number?

Subscribe now from £1 a week

Online

Unlimited access to The Spectator including the full archive from 1828

Print

Weekly delivery of the magazine

App

Phone & tablet edition of the magazine

Spectator Club

Subscriber-only offers, events and discounts
 
View subscription offers

Already a subscriber?

or

Subscribe now for unlimited access

ALL FROM JUST £1 A WEEK

View subscription offers

Thank you for creating your account – To update your details click here to manage your account

Thank you for creating your account – To update your details click here to manage your account

Thank you for creating an account – Your subscriber number was not recognised though. To link your subscription visit the My Account page

Thank you for creating your account – To update your details click here to manage your account

X

Login

Don't have an account? Sign up
X

Subscription expired

Your subscription has expired. Please go to My Account to renew it or view subscription offers.

X

Forgot Password

Please check your email

If the email address you entered is associated with a web account on our system, you will receive an email from us with instructions for resetting your password.

If you don't receive this email, please check your junk mail folder.

X

It's time to subscribe.

You've read all your free Spectator magazine articles for this month.

Subscribe now for unlimited access – from just £1 a week

You've read all your free Spectator magazine articles for this month.

Subscribe now for unlimited access

Online

Unlimited access to The Spectator including the full archive from 1828

Print

Weekly delivery of the magazine

App

Phone & tablet edition of the magazine

Spectator Club

Subscriber-only offers, events and discounts
X

Sign up

What's my subscriber number? Already have an account?

Thank you for creating your account – To update your details click here to manage your account

Thank you for creating your account – To update your details click here to manage your account

Thank you for creating an account – Your subscriber number was not recognised though. To link your subscription visit the My Account page

Thank you for creating your account – To update your details click here to manage your account

X

Your subscriber number is the 8 digit number printed above your name on the address sheet sent with your magazine each week.

Entering your subscriber number will enable full access to all magazine articles on the site.

If you cannot find your subscriber number then please contact us on customerhelp@subscriptions.co.uk or call 0330 333 0050.

You can create an account in the meantime and link your subscription at a later time. Simply visit the My Account page, enter your subscriber number in the relevant field and click 'submit changes'.

Please note: Previously subscribers used a 'WebID' to log into the website. Your subscriber number is not the same as the WebID. Please ensure you use the subscriber number when you link your subscription.

Coffee House

We must revisit the Equality Act to stop vexatious court cases

8 August 2013

6:04 PM

8 August 2013

6:04 PM

What have the Churchill £5 note, the Home Office ‘racist vans’ and the ‘Bedroom Tax’ got in common? All were alleged breaches of section 149 of the Equality Act 2010, which provides that public authorities are under a duty to have ‘due regard’ to preventing discrimination and advancing equality.

Dropping Elizabeth Fry from banknotes was said to be a breach of s149 by the campaign to bring a judicial review. They quickly secured the £10 note for Jane Austen. But as litigants, they would have been in good company. Section 149 was used by the Fawcett Society to challenge the 2010 Budget’s impact on women. It was also the legal basis for the attempt to quash the introduction of £9,000 university fees, challenging the withdrawal of the Independent Living Fund, and trying to block High Speed 2.

Of the 60-or-so reported cases where s149 has been pleaded, two things stand out. First, it’s a makeweight pleading: lawyers usually plead it last, in the alternative, because they know it’s their weakest argument. Second, it almost never works, and even where it succeeds, it is a superfluous score.

[Alt-Text]


So far in 2013, s149 has been pleaded in 12 reported cases – ranging from Housing Benefit cuts, to GCSE English grading, to a 15-year-old in breach of his bail conditions challenging his post-arrest detention. In the only case this year where claimants succeeded in showing a breach of s149, they had already succeeded on their previous five grounds of challenge. In 2012, it succeeded in less than a third of reported cases, usually where other arguments had already sealed victory. The defeats included an attempt to prevent a Jewish free school from being built on the site of a garden centre.

The danger of s149 is that it is as potent to political activists as it is ineffectual for legal advocates. Judicial review is supposed to be a check on executive power, but it has always been a canny way for campaigns to hit headlines. Any hopeless cause can now stick the golden horn of s149 on its forehead and pretend to be a legal unicorn, at least for as long as it takes to get on the 6 o’clock news.

In relying on the Equality Act as a legal magic wand – to demand the banning lads’ magazines from supermarkets, or force Twitter to improve abuse reporting, even to cast Doctor Who – activists allow the impression that the courts can be used to serve nakedly political ends. It wilfully confuses issues that should be decided by election winners of whatever tribe, with matters which are amenable to judges’ decisions.

Even if the PR tactic was legitimate, in the current climate it only gives grist to Chris Grayling’s mill for cutting back on access to judicial review more generally. If that wrong-headed policy is implemented, it will – like the legal aid cuts – hurt primarily those most in need of the Equality Act’s protection.

Judicial review is a tempting tactic for political types, and the Equality Act makes it far easier to corral a cause into a cause of action. Lord Justice Laws has said that judicial restraint kept s149 in its ‘proper place’. Perhaps we might go further, and ask whether s149 actually has any useful place at all.

Greg Callus is a barrister and legal journalist

Subscribe to The Spectator today for a quality of argument not found in any other publication. Get more Spectator for less – just £12 for 12 issues.


Show comments
Close