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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.

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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

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Show comments
  • David B

    S149 shows the folly of legislation that enshrines political dogma rather than legal principles. This dogma can be manipulated to any cause as it has no real meaning and all it does is create costs for everyone for no good effect

  • manonthebus

    Are these cases being funded from legal aid or from charitable donations? They surely are not funded by the individuals concerned.

  • Freda

    Was the picture accompanying this article meant to be that ironic?

    • markymark

      “White blokes”??? did you not see that there are females in the group? Typical knee jerk reaction.

  • Freda

    Just the Equality Act? Why pick on that, vexatious cases can be brought for many reasons. Why not revisit the Health & Safety Act? The Working Times Directive? Pensions legislation? Or not as much fun as bashing ethnic minorities and women for making pesky allegations of corrupt cabals of white blokes feathering their own nests and tying everyone else’s hands behind their back?

    • manonthebus

      That’s a bit strong isn’t it?

  • Colonel Mustard

    The country seems to be run mainly by and for NGOs and agenda driven pressure groups these days.

  • Colonel Mustard

    The country seems to be run mainly by and for NGOs and agenda driven pressure groups these days.

    • Emulous

      You were wrong as well on the last thread.
      The country is run as a partnership by the European Court of Human Rights and the European Commision.
      If we dilute the agenda of the fight we all fail.

      • Colonel Mustard

        I don’t think so. It is all part of the same hegemony.

        • Emulous

          Wrong again.
          Your NGO’s and pressure groups are a hearts and minds job while we can stop being supine and vote to get rid of the political and judicial institutions outside our territory that are dragging us down.

          • Colonel Mustard

            They are not “MY” NGOs and pressure groups and voting makes no difference. They rose to disproportionate influence under New Labour and nothing the present government has done has reduced that influence in the slightest.

            My vote doesn’t and won’t get rid of these gravy train institutions that are an integral part of the regime.

            You can keep saying “wrong” as much as you like, koala man, but that doesn’t make it so.

            • Emulous

              Not correct.
              Vote for a regime that will allow withdrawal from Europe and have the courage to withdraw from the Court of Human Rights.
              Such a Government(read my post again) will deny influence of -the NGO’s and pressure groups that you decry- while hearts and minds campaigns will let them wither.
              Have faith Colonel. Have faith.

              • Colonel Mustard

                And where is this voteworthy “regime”? Please don’t say UKIP. A vote for which will most probably give us the full-blown socialist hegemony rather than the current imitation one.

                • Emulous

                  There is no other option than a Tory-UKIP coalition.
                  Farage will stiffen the backbone of Gove who will inevitably succeed Cameron when he fails outright victory.
                  Farage will ensure a correct line on Europe and influx of the unwanted.

  • Daniel Maris

    Are we going to get a formal apology from the Spectator who have been promoters of mass immigration for many years now that we are moving into crisis mode with the announcement that we have more than 400,000 per annum extra mouths to feed and bodies to house. Just think about it – the bill for providing the housing infrastructure alone will be around £40 billion pounds per annum! Who is going to pay for that? Most of those people are going to be on low pay and not able to fund the housing development.

    Even Mark Easton of the BBC is having to admit it might have something to do with mass immigration – however he also noted that “women” were on average having large families. All women? Or is that rise associated with particular groups…he didn’t say – I expect the truth is that the increase is located within certain immigrant communities and, socially, at the top and lower end of the class structure (thanks to welfare dependency to the bottom and bonus enrichment at the top).

    It’s Game Over really. Only a vigorous shift in policy to stop mass immigration reduce family sizes can stop us heading for a full scale social and political disaster.

    • anyfool

      I think you will start to hear the words mass repatriation in the future as the scale of the catastrophe emerges.

      • Daniel Maris

        I hope not. And that’s one of the reasons I would like our political elite to focus on this issue.

        • anyfool

          They will only do that when it is far to late, Labour because they are the main cause, the Conservatives because of fear.

          • Daniel Maris

            Well I agree that it might be too late to avoid horrors when they finally do get round to addressing what is going on.

    • Emulous

      Inflammatory Danny boy or are you talking about the Pope’s edicts on contraception and the increased Irish migrations since the economic collapse in Ireland in 2008.

      • Daniel Maris

        I’m just wondering why the Spectator isn’t focussed on this issue. Spectator writers bleat on about debt, but these extra 400,000 people might well plunge us into an unsustainable debt situation.

        That’s why we need to drill down into Mark Easton’s statement that “women” are having larger families. Where are these women from? Are the women spread evenly across society. Or they focussed in communities that are in fact welfare dependent. If the latter, this is just storing up trouble for the future.

        Even in itself, adding 4 million to our population every decade is unsustainable long term.

      • Fergus Pickering

        But we don’t mind the Irish. It’s… who’s that knocking on my door?

        • Emulous

          I guess that was my point.
          At what point do we contravene the PC police state laws?

    • blindsticks

      Come to Wembley ,Acton, Harrow, Northolt, or almost any part of Ealing and you will get your answer. It’s certainly not white people – not even the Catholics.

      It’s about time the truth was spoken – ALOUD!

      Daily Mail Foreign Mothers Ealing

      nnet-server.com/server/common/eaealinghospitalbabies001.htm‎

      Cached

      1 May 2011 – “Of the 3,289 children born at Ealing Hospital, West London, in the past year … Nationally, one baby in four is born to a foreign mother, twice the …

  • Robert_Eve

    Better to repeal the Equality Act in toto.

    • Greg Callus

      I’m not sure that’s necessary. Plenty of the Equality Act does exactly what it was supposed to do, and most of it is entirely unobjectionable. I just think this one section introduces an opportunity for mischief which adds to the threats to judicial review, but without actually doing anything useful for claimants.

      • Emulous

        I am surprised that anyone can use clause 149 given section 6 of that act.

        (6)Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

        Or is that double speak?

      • Robert_Eve

        Let’s agree to disagree.

  • Tom Tom

    So why can’t judges simply use CPR 3C and issue a Civil Restraint Order ? Likewise they could use CPR 3.4 to strike out the Case. You think there needs to be Direction to Judges which must surely come from Sir John Thomas ?

    • Greg Callus

      CPR 3C could be used if a *particular litigant* was acting vexatiously – I think s149 lends itself to a different type of problem: the political campaign that only occasionally dips its feet into litigation. And courts won’t just strike out that head of claim, because it is perfectly arguable due to the broad way in which the statute has been drafted. The predecessor clauses (s71 Race Relations Act 1976) worked well at the time because they were of limited application. This section 149 is so general, almost any campaign could use it to craft a JR.

      If it was genuinely useful for worthy causes that couldn’t otherwise win, I’d say it was worth keeping, but on the reported cases I’ve read, I just don’t think it adds anything, except the opportunity for politicised judicial review.

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