Tag Archives: Equality

Graham Gee and Kate Malleson: Judicial Appointments, Diversity and the Equal Merit Provision

graham-gee-webmalleson-photo-2010One of the changes introduced by the Crime and Courts Act 2013 was to amend section 63 of the Constitutional Reform Act 2005, which provides that the Judicial Appointments Commission (JAC) must select candidates for judicial office ‘solely on merit’. Schedule 13 of the 2013 Act clarified that making selections solely on merit does not prevent the JAC from recommending a candidate on the basis of improving diversity on the bench where there are two candidates of equal merit. This is variously known as the ‘equal merit’, ‘tie-break’ or ‘tipping point’ provision and derives from s 159 of the Equality Act 2010. After a consultation exercise last summer, the JAC last month published its policy on how it will implement the equal merit provision. In this post, we draw on research conducted as part of an AHRC-funded project on The Politics of Judicial Independence to explain why the JAC’s policy is disappointingly cautious, limits the prospect of further progress on diversity and offers further evidence of what we believe is the excessive judicial influence on judicial appointments.


We begin with some words of praise for the JAC. Since its creation in 2006, the JAC has inter alia devised: robust processes that have for the most part identified suitably qualified candidates of good character; addressed problems that were an early feature of those processes (e.g. delays); and over time has fostered the confidence of the key stakeholders (i.e. ministers, judges and practitioners). It has done this all of this whilst becoming a leaner and more efficient operation in an age of increasingly scarce public resources. Between 2009-10 and 2014-15, its budget is projected to have fallen from £7.6m to £4.85m, its staff from 105 to 67, and yet the number of recommendations for judicial office that the JAC has made has risen from approximately 450 to 750 a year. These are important accomplishments that have helped to secure the JAC’s position on the institutional landscape, something that was much less certain around 2008-09 when the then Lord Chancellor, Jack Straw, considered abolishing the JAC and either bringing appointments back in-house or delegating more responsibility to the senior judges. Much credit is due to the leadership team of Christopher Stephens as Chair and Nigel Reeder as Chief Executive, who since 2011 succeeded in fostering much more constructive and cooperative relationships with the JAC, the senior judiciary and the Ministry of Justice.

All that said, we remain concerned, like many others, by the relatively slow progress in increasing judicial diversity. It is true that women constitute around 40% of the nearly 3,500 recommendations made by the JAC between 2006 and 2013, with BME candidates around 10%. It is also true that some recent selection exercises have seen women appointed to senior roles: for example, in 2013, five out of the 14 recommended for the High Court were women, while three women filled 10 spots on the Court of Appeal. Given the exceptionally small number of women in the senior judiciary, this might be deemed slow but steady progress; or as a senior judge put it to us, it might be thought that ‘the dam has broken’. But change has been slower than expected, and improvements have largely been concentrated in the lower ranks, and particularly in non-legal tribunal appointments, with the upper ranks of the judiciary remaining substantially untouched. The JAC chair himself acknowledged in March in evidence to the Justice Committee that he was ‘absolutely certain’ that there would not be an equal representation of women on the bench within five years. It is against this backdrop that the JAC’s policy on equal merit is so disappointing.

Equal Merit Policy

The JAC manages a highly formal selection process involving advertising, short-listing by tests or paper sifts, interviews and, for some vacancies, presentations or role-playing. For each vacancy, the JAC must recommend a single candidate to the Lord Chancellor, Lord Chief Justice or Senior President of Tribunals, depending on the vacancy. Under its new policy, where two or more candidates are assessed as having the skills, experience and expertise that result in them being considered equal when assessed against the selection criteria, the JAC may apply the provision ‘to give priority to the candidate with declared protected characteristics which are the least well represented in the office to which they are being recommended for appointment’. In devising this policy, the JAC faced two critical questions. First, should the provision apply to all stages of the selection process, including short-listing, or just once at the final stage where the JAC makes its recommendation? Second, to which groups of people should the equal merit provision apply? The JAC answered both questions very narrowly, adopting what its chair has conceded is ‘a fairly minimalist’ approach.

The JAC will apply the provision only at the final selection stage. This blunts the provision’s potential to increase diversity. As we see it, the premise that there may be candidates exhibiting different strengths and weaknesses who are considered of equal merit is relevant to short-listing and final selection. Applying the provision at short-listing could help remove barriers that might prevent non-conventional candidates being called for interview. The JAC has further limited the provision’s potential by applying it only to race and gender. It has done so on the grounds that the provision should only be used where under-representation can be demonstrated by reference to published data. We recognize there are practical difficulties related to the availability of reliable data for some of the ‘protected characteristics’ under the Equality Act 2010. However, the JAC needs to be more proactive in widening the number of protected groups to whom the equal merit provision can apply. This means collecting reliable data for groups other than race and gender. We further recognize that collecting personal data can be problematic; for example, many applicants in the judicial appointments process seem reluctant to disclose personal data. But this is a problem with which many organizations are grappling as they implement important equality and diversity legislation. The JAC needs to devote more time and resources to being a pioneer on such matters rather than reacting to developments elsewhere. A more pioneering and proactive approach would be consistent with the JAC’s duty to ‘have regard to the need to encourage diversity in the range of persons available for selection’.

Several commentators question whether the provision will make much difference to the composition of the judiciary. In particular, some doubt whether there really will be many occasions where two or more candidates are deemed equal, all things considered. After all, the JAC’s Chair suggested in late 2011 that there had been no two broadly indistinguishable candidates out of the 500 recommendations made by the JAC since he assumed office earlier that year. If it is indeed the case that the JAC is always able to distinguish between candidates, then it would be unsurprising if many were to agree with Alan Paterson and Chris Paterson that the equal merit provision ‘runs the risk of marking merely another positive headline backed by very little positive impact in terms of addressing the glaring diversity deficit’. However, we prefer the position of the former JAC Vice-Chair, Lady Justice Hallett, who has suggested that it is not ‘as rare as people think that you have candidates who are equally qualified’. To grasp the potential of the equal merit provision requires a certain attitude—and perhaps a change of attitude amongst some currently serving on the JAC—about the type of assessments made by selection panels when faced with candidates with different but commensurable judicial qualities.

In short, the provision has the potential to be a useful tool to address the diversity deficit. However, as narrowly interpreted by the JAC, the equal provision is likely to have very little impact. If the JAC was strongly committed to using it in its full extent, was willing to apply it at more than one stage of the selection process, and to apply it to a wider range of protected characteristics, the provision could make a difference. The decision to use it in this very limited way is ultimately a political decision about the weight given to diversity. The question that arises is this: why is the JAC seeming to place so little weight on the issue of diversity?

Judicial Influence on Judicial Appointments

On our reading, the JAC’s extremely narrow policy on the equal merit provision is potential evidence of the excessive judicial influence on judicial appointments. We have pointed to the high—and, in our view, too high—levels of judicial influence on JAC-run selection processes in previous posts on this blog; see here and here. In a forthcoming book (with Robert Hazell and Patrick O’Brien), we argue that although senior judges acknowledge the lack of diversity, and seem genuinely keen to see change, they have for the most part resisted initiatives that are designed to bring about a much faster transformation. We also argue that over time, and over several different issues, the JAC has become less willing to challenge senior judges over this. As one of our interviewees put it, the senior judges are ‘very effective’ in achieving their ‘desired outcomes’ when interacting with the JAC.

We suspect that the policy on the equal merit provision is a further product of the high levels of judicial influence on the judicial appointments processes. Over half of the responses to the JAC’s consultation exercise on the equal merit policy were from judges and their representative bodies. There were also lengthy discussions in private between the JAC, the senior judges and the Ministry of Justice. Possible evidence of the influence of judicial concern about equal merit can be seen in the comments of the JAC Chair in his evidence before the Justice Committee: ‘[t]here is serious caution among many…the stakeholders…are cautious about [the equal merit provision]’. If we are correct in suspecting that judicial caution is largely responsible for the JAC adopting such a narrow policy on equal merit, then this merely underscores that the challenge confronting the appointments system in the years ahead is less the threat posed by inappropriate ministerial interference, but the cumulative consequences of excessive judicial influence.


The JAC will report the number of occasions the equal merit provision is applied in its twice-yearly Official Statistics Bulletin. It has also committed to keeping the provision under review. We welcome this. And plainly, the proof of the pudding will be in the eating, and even the JAC’s narrow policy may have more of an impact than we predict. On the basis of the narrowness of its policy, however, there is reason to suspect that this may prove to be another missed opportunity for the JAC to send a strong signal of the importance it attaches to diversity.

Graham Gee is a lecturer at the University of Birmingham and Kate Malleson is a professor at Queen Mary. Together with Robert Hazell and Patrick O’Brien from the Constitution Unit at University College London, they recently completed an AHRC-funded project on “The Politics of Judicial Independence”.


(Suggested citation: G. Gee and K. Malleson, ‘Judicial Appointments, Diversity and the Equal Merit Provision’ U.K. Const. L. Blog (6th May 2014) (available at: http://ukconstitutionallaw.org)).

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Christopher McCrudden: Equality and the Good Friday Agreement: Fifteen Years On

 mccrudden2-high-res-1_1The Northern Ireland peace agreement was born on the 10th April 1998, Good Friday, in Belfast and will thus celebrate its 15th birthday next week. One of the central elements of the Agreement was to achieve equality between the two main communities in Northern Ireland. It was an ambitious attempt to achieve this aim through a significant restructuring of the Northern Ireland constitution. This aspect of the Agreement has implications, therefore, for the role of constitutions in achieving equality more broadly. The fifteenth anniversary provides a suitable occasion to assess the outcomes achieved, and to look to the future.

The Northern Ireland constitutional model incorporated in the Belfast-Good Friday Agreement is neither unique, nor particularly unusual in a global context.  It is a classic democratic consociation, as political scientists term it. Four key elements of democratic consociation are commonly identified.

These are, first, the sharing of executive and, often, legislative and security powers among representatives of all the major communities, especially those with histories of prior antagonism. Examples of specific arrangements include collective presidencies and co-premierships; examples also include concurrent or qualified majority rules. Plainly such power-sharing aims to achieve greater inclusivity and jointness in decision-making than ‘winner-takes-all democracy’.

The second key feature is community autonomy. Each constituent group has significant internal self-government in at least one public function (for example, in establishing and controlling its own schools). Equality across the communities applies in these respects. Self-government accompanies shared government.

The third feature is the widespread use of the proportionality principle, understood to encompass proportional representation in shared institutions, and the allocation of important resources and public offices. For example, posts in the civil service, security forces, and judiciary, are shared out by reference to the proportions the groups have in the population as a whole, or in the labour market. Proportionality may also apply to the allocation of public expenditures, e.g., each group may receive the same per capita funding for its primary schools.

Lastly, because power-sharing, proportionality, and autonomy may not provide sufficient assurance to particular groups that their interests will not be over-ridden, explicit veto rights may be granted to each of the communities on vital issues, with variations in how these veto rights are allocated and legally entrenched.

How does all this relate to the equality agenda? Apart from the attempt to achieve equality at the level of the legislature and the executive, there are three additional legislative features of the equality agenda in Northern Ireland that relate to the Agreement: first, the fair employment legislation which began in 1976, was fundamentally restructured in 1989, and more minimally reformed as a result of the Belfast/Good Friday Agreement; second, section 75 of the Northern Ireland Act 1998 which established a public sector equality duty on public bodies resulted directly from the Agreement itself; and third, the (now repealed) quota provisions regarding the recruitment to the Northern Ireland Police Service is derived from the Patten Commission established as a result of the Agreement. There are five points I want to make.

First, the equality agenda comprising these elements can best be understood in the context of the Northern Ireland consociational model. It is, of course, separable from it – much of the equality agenda borrows its techniques from other countries (such as the United States) where consociations are not in operation. But placing it within the consociational model emphasizes the extent to which equality in Northern Ireland is primarily about securing the third of the three elements I described earlier – the proportionality principle. It is this that marks the equality agenda in Northern Ireland out from that in the rest of the United Kingdom or, indeed, in the Republic of Ireland.

Second, it is also useful to see the equality agenda in the context of the consociational model for another critical reason: the effective enforcement of fair employment after 1990, and the debate over the public sector equality duty in the early 1990s was a critical element in the “confidence building” measures that resulted in nationalist (and particularly republican) politicians agreeing to the other elements of the consociational package, in particular the first of these, the sharing of legislative, executive and security powers with the other parties. The orthodox histories of the run up to the Belfast/Good Friday Agreement largely, I think, underestimate the extent to which there was a parallel “peace process” that supported the main process, but which concentrated less on security and power-sharing issues and more on economic, social and human rights issues.  In practice, the two went hand in hand.

The relative success in getting these equality measures accepted and implemented provided a degree of reassurance that the Northern Ireland state was capable of reform and transformation, and laid some of the political ground work for the Agreement. The Americans, and largely because of them the Irish Government, understood this; I was never convinced that the British Government did (or, perhaps, does) fully comprehend the importance of this.

The third reason for emphasizing the consociational context of the equality agenda is that the other elements of the consociational model act as a limit on a liberal individualistic equality agenda. This can be seen in two respects.  First, the consociational model depends on the recognition and (to a degree) the institutionalization, of the two major communities as the key political actors. For some, though not for me, this is anathema because it appears to emphasize existing divisions rather than transcending them; and this came to a head in particular in the debate over the Patten police quota arrangements.

A second limit on the equality agenda arising from consociation relates to schools. I said that one of the features of a consociation is a degree of autonomy in certain spheres.  In Northern Ireland, the best example of an autonomy arrangement relates to primary and secondary education, which is a closely guarded sphere of Catholic influence.  Fair employment legislation has carved out teaching in schools as an exception.  This can really only be understood when seen in the consociational context.

I will end by making two further points.  The first is that, to a considerable extent, the strategy worked, not just in the sense that it helped build confidence (which it did), but in its own terms. In particular, research supported by the Nuffield Foundation demonstrates pretty definitively that the effective enforcement of the fair employment legislation in the 1990s led to a significant shift in the labour market with significantly reduced inequality between Catholics and Protestants, at the same time as achieving significant desegregation. There is a more complex story to tell, but suffice to say it is a very good news story, and one that Northern Ireland should be proud of. It is the success of this legislation that has significantly taken the poison out of the discrimination issue (a poison that those of us who worked in the area remember only too well). The same applies to the Patten quota, which has succeeded in restructuring the composition of the police service from one that was overwhelmingly Protestant to one that is now proportional, and has contributed to the increased acceptance of the police in the nationalist community.

Finally, what of the future? Although by no means unique globally, consociational arrangements are unusual in the British and Commonwealth world, and are therefore continually under pressure; there is a sense among some opinion formers in Britain that the Westminster model is in some way the “norm” and that, in time, the aim should be to return Northern Ireland to “normality”.  In the equality context, this means constant indirect pressure to reduce the specifically Northern Ireland features of the approaches taken to equality, such as compulsory monitoring in fair employment, a significant regulatory presence in the labour market in the shape of the Equality Commission, and the process requirements of the public sector equality duty concerning civil society participation in decision-making, and impact assessment. Both the European Union and the domestic courts have recognized the importance of preserving the Northern Ireland equality model, and have resisted attempts to force change.[1]

The greater danger comes, I think from, a sense among some opinion formers in London (and even some in Belfast) that the equality job has been done, equality has been achieved, and we can therefore simply dismantle the panoply of equality requirements, particularly in a time of financial cutbacks. That view, I suggest, should be strongly resisted. The importance of the equality agenda in enabling the Belfast-Good Friday Agreement to be concluded in the first place, and ensuring that a stable government could eventually be established and maintained, should be recognized and lessons learned. It would be a mistake, I think, of incredible stupidity with incalculable costs if inequality between the two communities were to become a significant problem again in Northern Ireland.

Christopher McCrudden FBA is Professor of Equality and Human Rights Law, Queen’s University Belfast, and Leverhulme Major Research Fellow (2011-2014). It is an edited version of a talk presented on the 27th March 2013 at the British Academy seminar “The Good Friday Agreement: 15 Years On”.

Suggested citation: C. McCrudden, ‘Equality and the Good Friday Agreement: Fifteen Years On’ UK Const. L. Blog (29th March 2013) (available at http://ukconstitutionallaw.org)
[1] Unlike in Bosnia Herzegovina, where there have been systematic external attempts to dismantle the consociational arrangements, explored further in Christopher McCrudden and Brendan O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (OUP, 2013).


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Colm O’Cinneide: Equality: A Constitutional Principle?

In 1994, Jeffrey Jowell published a paper in that year’s volume of Current Legal Problems entitled ‘Is Equality a Constitutional Principle?’ ((1994) 7 Current Legal Problems 1). The question mark in the title was significant. It indicated that the status of equality in UK public law was very much open to question. Seventeen years on, it is worth revisiting this issue. Can equality now be described as a ‘constitutional principle’? If so, what legal weight is attached to the idea of equality? Does UK public law provide effective protection against inequality, in particular discrimination based on ‘suspect grounds’ such as race or sex?

It is clear that equality constitutes a core value of the UK constitutional order, just as it is for every other democratic state. As Baroness Hale pithily put it in Ghaidan v Godin-Mendoza [2004] UKHL 30, [132], ‘democracy is founded on the principle that each individual has equal value’. The rule of law is based on a similar assumption that individuals should enjoy equality of status. The entire constitutional structure of the UK is thus predicated on respect for the formal equality of citizens, even if women and ethnic, religious and other minorities have in practice been subject to serious discrimination.

However, despite its central importance within the UK’s constitutional scheme of values, equality has been accorded what is at best an uncertain and ambiguous status in common law adjudication. For decades, it was unclear whether discriminatory behaviour by public authorities could constitute grounds for successful judicial review. Furthermore, courts often gave a narrow interpretation to anti-discrimination legislation, on the basis that it carved out exceptions to established common law principles such as freedom of contract and association.

Nevertheless, increased social acceptance of the need for strong legal protection against discrimination began to shift attitudes, and public law doctrine began to evolve in response. Jowell’s 1994 article argued that it was possible to read a series of judicial review decisions dating back to Kruse v Johnson [1898] 2 QB 91 as establishing the existence of a ‘common law principle of equality’ which constituted part of the wider public law doctrine of rationality and prohibited unequal treatment based on ‘distinctions which were not properly justified’ or which ‘ultimately [force] the citizen to relinquish her or his sense of equal worth’. Subsequent judicial dicta gave some qualified support to this argument: see for example Lord Hoffmann’s comments in Matadeen v Pointu [1999] 1 AC 98 at [8]. In Gurung v Ministry of Defence [2002] EWHC 2463 (Admin), McCombe J. concluded that unjustifiable distinctions based on racial or ethnic distinctions would be ‘irrational and inconsistent with the principle of equality that is the cornerstone of our law’ and held that the exclusion of Gurkha soldiers from the scheme of compensation payments awarded to former Japanese prisoners of war was irrational. Blake J. in R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin) similarly was of the view that this ‘common law principle [of equality] is an important instrument whereby it can be determined whether a discretionary public law decision is rational’.

However, the status and exact content of this equality principle remains uncertain. Lord Hoffmann in Matadeen expressed concern about its ‘banality’, while it remains unclear what if anything it adds to the existing case-law on irrationality. It appears as if decisions based on clearly discriminatory criteria will fall foul of rationality review. Beyond that, it seems to add little to existing public law controls on the behaviour of public authorities. Jowell’s argument that the equality principle could be extended to cover situations where a denial of dignity, respect or ‘equal worth’ was at issue appears not to have been taken up by the courts.

The status of equality as a common law principle thus remains qualified at best. However, the gap this has left in public law regulation has to a large extent been filled by legislation. The Equality Act 2010 in codifying a complex set of anti-discrimination enactments dated back to 1964 prohibits public authorities discriminating in the performance of their public functions, unless specifically authorised to do so by primary legislation. This is backed up by the requirements of the EU equality directives and the jurisprudence of the European Court of Justice, which obviously take precedence over UK primary legislation within their field of application.

Furthermore, the 2010 Act also imposes a general positive duty on public authorities to give ‘due regard’ to the need to eliminate discrimination and promote equality of opportunity in how they perform their functions. This duty has been interpreted by the courts as essentially procedural in nature, but has had some effect in cases such as R (Kaur) v London Borough of Ealing [2008] EWHC 2062 (Admin) in steering how public authorities engage with issues of equality and discrimination.

Furthermore, Article 14 of the ECHR as incorporated into UK law by the Human Rights Act 1998 prohibits public authorities discriminating against individuals ‘in the enjoyment of their Convention rights’. This is a famously circumscribed right: it only comes into play when where the facts in question fall within the ‘ambit’ of one or more of the other ECHR rights. Furthermore, interesting differences in approach appear to exist between how the UK courts and the European Court of Human Rights apply Article 14. UK courts have tended to adopt a narrow interpretation of what comes within the ‘ambit’ of other Convention rights and apply a light touch review in Article 14 cases except where ‘suspect’ grounds of discrimination such as race, sex and sexual orientation are at issue: the key decision in this respect remains that of the House of Lords in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173. In contrast, the Strasbourg Court has adopted a wider approach to the ‘ambit’ question and also engages in a more interventionist form of review: in particular, it is more willing to apply Article 14 to a wider range of status-based discrimination. The difference can be striking, as for example illustrated by the recent decision in Clift v UK, Application no. 7205/07, Decision of 13 July 2010 where the Strasbourg Court adopted a very different approach to that of the House of Lords in the same case.

Nevertheless, despite its inherent limitations and these contrasting judicial approaches, Article 14 has come to serve as a general legal guarantee of equal treatment. If the UK were to sign and ratify Protocol 12 to the Convention, it would incorporate a freestanding equality guarantee similar to the US Equal Protection Clause or Article 3 of the German Basic Law into its legal system. This would widen protection against discrimination still further: however, for now, it remains unclear as to what this would add to the existing requirements of Article 14 taken together with domestic and EU anti-discrimination legislation.

Individuals are therefore protected against discrimination in UK law through a combination of overlapping legislative, human rights and common law standards. Added together, they provide a set of legal guarantees of equal treatment which is broadly comparable in outline to that offered in other European and North American jurisdictions. However, the protection offered under many of these legal provisions remains patchy or uncertain. Furthermore, where this protection is best developed, it is usually the result of legislative intervention or the jurisprudence of the European courts. The ‘home-grown’ common law standards remain relatively underdeveloped. As such, it may be premature to speak of equality as constituting a well-established ‘constitutional principle’: rather, it is better to describe it as an important democratic value that is protected by a complex web of overlapping European and domestic legal standards, but whose scope and content remain very much open to debate.

Colm O’Cinneide is a Reader in Law at University College London.  


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Wanjiru Njoya: Equality Law and the Total Constitution

As an immigrant to the UK, I have as much reason as the next person to be worried about the constant stream of poll statistics offering more or less reliable empirical evidence of racism, measured by factors such as the percentage of people who enjoy watching Midsomer Murders. It is therefore with great caution that I agree with one part of Richard Epstein’s well-known argument against equality legislation (Forbidden Grounds: The Case Against Employment Discrimination Laws, Harvard University Press, 1992). It is not his argument that equality law is inefficient which persuades me, but his assertion that ‘Where markets do not have formal barriers to entry, the victims of discrimination have effective strategies of self-protection and powerful allies whose own self-interest will operate on their behalf’ (at 59). This implies that effective and powerful solutions to the problems of inequality and discrimination might lie in the hands of victims of discrimination, supported by those who believe in the ideals of equality and the intrinsic worth of every human being, and also bolstered by those selfish types who don’t care about inequality but do care about hiring the best person for the job in order to turn the greatest profit (i.e. would not consider it rational to refuse to hire the best person because of that person’s race or sex).

This assertion of Epstein’s is compelling; it is attractive because it is optimistic about the potential for finding new solutions to a persistent problem. It implies that abandoning the old-style hard-law approach of legislation from the 1960s and 1970s may indeed be the better way forward. This would be more in keeping with current thinking which advocates greater reliance on self-regulation by market participants. Epstein’s analysis suggests that anti-discrimination law may have adverse unintended effects, disempowering victims of discrimination by stifling the development of their own self-protection strategies and undermining the alliances they might otherwise forge if they could reliably distinguish friend (supports equality or is not bothered one way or the other) from foe (actively hostile to equality) in a free market where there are no artificially imposed constraints on expressing one’s true preferences within the limits of the general law (so, nothing criminal), no matter how irrational or unsavoury others may consider those preferences to be.

Against this approach may be posited the idea of the ‘total constitution’ which holds that in a modern democracy there is no legitimate self-regulatory space in which it is permissible for people to violate core ideals of the liberal constitution such as non-discrimination on grounds of race, sex, and other grounds covered by equality legislation. From this perspective, the framework of constitutional law extends the protection of fundamental human rights into every area of law, life and society (Mattias Kumm, ‘Who’s Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 341).  In this view there can be no such thing as too much law where fundamental rights are at stake, and there are no boundaries constraining the review jurisdiction of the courts on constitutional issues. There is no exclusive domain for private law as every aspect of the relationship between private individuals, and every legal conflict, becomes ‘constitutionalized.’ There is no ‘safe harbour’ for anyone who wishes to act in ways which denigrate the core values of a liberal society. This depicts a ‘constitutional juristocracy’ which is the natural outcome of a sophisticated modern liberal conception of human rights, democracy and equality. It derives its constitutional legitimacy from a form of deference in which an enlightened and self-restrained judiciary abstains, where appropriate, from interfering needlessly with the autonomy of private individuals.

Kumm writes in the context of the German constitution; Epstein in the context of the United States. But it is easy to see the relevance of these ideas for debates about equality legislation in the UK.  The perception that the constitution functions as ‘a kind of juridical genome that contains the DNA for the development of the whole legal system’ (Kumm, at 344), and acceptance of the idea that no corner of private law lies beyond its reach, explains or at least is consistent with the way equality law has evolved to encompass more grounds and to reduce the scope for justifying discriminatory, or even apparently discriminatory, decisions. The question Epstein raises is then worth exploring further. Are there any ‘effective strategies of self-protection’ for victims of discrimination in a free society and if so, does equality law support and promote these strategies or does it undermine them?

One reason cited by Epstein for allowing all parties to freely reveal their preferences in choosing whom to interact with in the marketplace is that otherwise they simply ‘burrow in deeper so as to keep their true grounds concealed. Memos to the file, far from being candid, will now be phrased in language that tracks the statute’ (at 166). Every employer proclaims itself to value diversity and equality of opportunity. Laws which provide an incentive for employers to fabricate fictitious but justifiable reasons for not hiring people might succeed in creating the superficial impression of a society in which all is well and everybody gets along, but the effect of this on victims of discrimination can be disastrous for a number of reasons.

Suppose a woman’s application for a job is rejected because of her race, and she is given a fabricated reason linked carefully to the qualifications necessary for the job. If she assumes the reasons given to be credible, this suggests to her that there are justifiable reasons why her qualifications are unsuited to this job, and presumably any job of a similar nature. If she assumes the reasons given not to be credible, she may tend thereafter to assume that no decision to reject her is ever justified (she sees a discriminatory motive lurking behind every rejected application) and responds to this by becoming prolifically litigious or by labouring always under the conviction that she cannot trust anything she is told. All these responses are inimical to her fuller, more fulfilling, participation in the labour market. In this example, the truth is empowering  to the victim. It would allow her to identify and develop effective strategies in response, which is a better starting point than the informational black-out created by equality law. Everyone is surely better off if reasons are constructed in such a way as to communicate truthful and reliable information, no matter how unpalatable, instead of reasons constructed in such a way as to avoid legal liability.  Aggregate social welfare is enhanced when there are no legal penalties for revealing true preferences in choosing whom to interact with in the sphere of private law.

To answer Kumm, nobody is afraid of the total constitution; instead the fear seems to be that in the absence of a total constitution liberal democratic values would be at risk and the lessons of history would be lost. Yet the question must be asked whether freedom for every individual irrespective of colour or creed is attributable to and made possible by the existence of equality laws in itself, or whether these laws are merely the legal expression of the enduring values and ideals upheld by free societies. The latter interpretation suggests that the legal framework of equality is far less important than it appears to be in a ‘total constitution’ world view. Instead, within a self-regulatory framework equality law would continue to play an important role in setting aspirational standards and maintaining monitoring procedures to ensure that outcomes do not endanger the public interest, but there would be no role for sanctions that simply force employers to ‘burrow in deeper’ to avoid liability for discriminatory decisions.

Wanjiru Njoya is a fellow of Wadham College, and a lecturer at Oxford University.

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