Below you can read the editorial of the latest edition of our journal Briefings - also in the attachment together with the table of contents - the whole journal is available here to DLA members only (how to join)
Evolution and change – past principles, future challenges
No one can doubt that the scope of equality law has expanded significantly over the last 50 years, yet we still see occasions when even the most basic principles fall on deaf ears. One such example is the subject of our feature article, where Catherine Casserley looks more closely at the provisions applying to ‘associations’ in Part 7 of the Equality Act within the context of a recent case: Wheeler v The Scouts. You would think it obvious that a national organisation such as the Scouts would recognise its obligations to make reasonable adjustments for a disabled child so he could participate in activities, yet somehow it missed this important legal requirement.
Likewise, we all know that racial stereotyping still exists, but we rarely see it as explicitly demonstrated as in the case of Johnson & Johnson v Mrs T Fayokun – a claim involving a large commercial medical organisation, which makes it particularly disturbing.
Our second feature follows up on Cara Hall's book review of 'We Set the Bar’ in the last edition of Briefings. This time we have an in-person interview with its author, Jo Delahunty KC, who reminds us just how far the legal profession has progressed from its antiquated roots, when sex, class and race were truly entrenched in its institutions. Jo’s achievements make her an inspirational role model for many aspiring lawyers, both young and old, showing that it is possible to break through archaic hierarchy.
In this edition of Briefings, we have another book review, The Deaf Legal Dilemma by Rob Wilks. In it, he critiques a specific aspect of our current judicial system, proposing that it inherently discriminates against deaf people and ultimately fails to deliver the equality it purports to protect. In different ways, both Jo Delahunty’s personal journey and The Deaf Legal Dilemma encourage introspection, reminding us that the institutions entrusted with delivering justice are not immune to the very defects they seek to remedy.
Turning to a slightly different theme, whilst there may be a perception that equality law is expanding ever outward, it is equally important to recognise that it doesn’t always take the form of more of the same. For example, the courts are increasingly dealing with conflicts between protected interests rather than straightforward exclusion. Twenty years ago, most practitioners focused on the core pillars of sex, race, and disability, but the landscape has now shifted towards the importance of beliefs (both religious and political), with the ‘manifestation’ of those beliefs taking centre stage.
There is a greater analysis of the difference between the belief itself and its manifestation, with causation remaining the crucial question. The case notes on Miller and Garrett illustrate the importance of identifying what truly caused the treatment complained of: was it the belief or its manifestation?
Although not an Equality Act case, Oxfordshire County Council v Ben Cullen offers a different perspective on a similar dilemma: balancing freedom of expression against wider societal harm (something that is becoming increasingly familiar in current equality law cases). Some might argue that what is really being demonstrated here is the tension between dignity and pluralism – both of which are essential to the concept of inclusion.
This brings me to an interesting observation: equality law is commonly discussed today in the language of diversity, inclusion and organisational benefit. Yet its origins lie in collective struggles against oppression, exclusion and unequal treatment. Recent cases remind us that courts still grapple with difficult questions about whose rights are protected and why, before examining how those protections work in practice. Perhaps that is as it should be. A mature body of law does not simply expand; it must on occasion also pause to reflect on the principles that justify its existence.
Lisa Crivello
Editor, Briefings