1. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC1 Reflections on Positive Action in the United Kingdom ROBIN ALLEN QC CLOISTERS

2. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC2 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

3. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC3 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war  Depended on disabled persons willing to register  Poor enforcement of quota system  Dead letter long before Act repealed

4. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC4 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

5. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC5 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

6. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC6 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

7. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC7 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

8. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC8 POSITIVE ACTION AND SUNSET CLAUSES Compliance with international standards on “special measures” Sex Discrimination (Election Candidates) Act 2002 Northern Ireland Policing Legislation

9. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC9 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

10. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC10 POSITIVE ACTION AND EQUALITY ACT 2006 A changing concept of equal opportunity with greater emphasis on individuality, multiple identities, mutual respect, and dignity.

11. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC11 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?

12. EDF - JUSTICE - POSITIVE ACTION - ROBIN ALLEN QC12 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