As pundits and politicians across the UK try to digest and interpret the confidence and supply deal with between the Conservatives and the DUP, Dr. Elaine Dewhurst considers the implications of the deal for equality legislation and lays out a way forwards for equality and human rights in the UK.  

• There is a distinct need to improve our equality legislation in many areas and to ensure effective enforcement
• References to equality on grounds of age were omitted from the Queen’s Speech and from both party manifestos
• The Conservative-DUP deal will likely contain some rather uncomfortable compromises around equality priorities which will mainly affect LGBT communities in Northern Ireland
• There must be recognition that equality is a human right which should not be subject to political compromise and that human rights are inalienable and the structures that assure them should be robustly protected and respected

Equality in the UK

Across the UK recent equality law cases have included disputes affecting every part of our lives, from access to bed and breakfast accommodation, to a refusal to bake a cake with a pro-gay marriage slogan on it, to the use of wheelchair spaces on buses to prayers at town council meetings. In England and Wales, the Employment Tribunal reported a fourfold increase in sex discrimination claims in the workplace in 2015 and an almost twentyfold increase in age discrimination claims.

We have equality laws across the UK which protect us to varying degrees against discrimination on grounds of sex, race, religion, disability, marriage or civil partnership, age, sexual orientation and gender reassignment in the workplace, and in the provision of goods and the use of services. However, the increase, the scope and the complexity of equality cases arising across the UK indicate a very distinct need to improve our equality legislation in many areas and to ensure effective enforcement. This requires the Government to take equality seriously and to treat all discrimination, regardless of its basis, as an affront to human dignity which should be appropriately sanctioned.

Equality law under the Tory-DUP deal

Recent political developments (most notably the Conservative and DUP confidence and supply arrangement) threaten to derail attempts to achieve this greater protection of equality. The rather loose alliance between these two parties could essentially mean a pick ‘n’ mix approach to equality protection: certain areas of discrimination law (for example, particular aspects of sex discrimination law, such as the corporate pay gap) may receive adequate attention because it is more politically palatable, while others grounds of discrimination (e.g. sexual orientation discrimination or age discrimination) may be side-lined. The limited, albeit conciliatory, statement on equality in the Queen’s Speech indicates that neither party is firmly committed to achieving full equality.

So what will equality law look like under this new Government? Provided existing equality structures remain unchanged, there appear to be certain areas of equality law which both parties agree need to be tackled as a matter of priority. These are issues surrounding discrimination on grounds of race, gender, religion and disability. The Conservative Party Manifesto was particularly strong in this regard, citing the gender pay gap, disability and race discrimination as key priorities for this government. The DUP has also indicated that they support real and meaningful equality for women and ethnic minorities as well as recognising the importance of protecting rights for persons with disabilities.

However, outside of these particular areas of priority, other grounds of equality such as age equality appear to be entirely sidelined. References to equality on grounds of age, despite its obvious importance given the increase in age discrimination across the UK and the impending demographic and pension crisis, were omitted from the Queen’s Speech and from both party manifestos. While the deal brokered between the two parties has promised to maintain the triple lock on pensions and the universal winter fuel payments, there are other pressing issues of concern for older and younger people including employment discrimination, educational and housing needs and encouraging active ageing. Indeed, even within the areas of priority (e.g. sex discrimination), there appears to be a focus on certain key areas e.g. corporate pay gap, with little attention focussed on other pressing issues such as pregnancy discrimination, and discrimination based on family status.

The DUP and LGBT rights

However, a key issue which is likely to be most contentious is the protection against discrimination on grounds of sexual orientation. While it was very clearly stated in the Queen’s Speech that the government intend to make further progress to tackle discrimination against people on grounds of sexual orientation, an alliance with the DUP, who have, to put it mildly, a rather chequered history in matters relating to sexual orientation, could mean that compromises will have to be made at the expense of genuine equality.

Successive attempts to legalise adoption by unmarried couples (including same-sex couples) were blocked by DUP Health Ministers, until the Supreme Court held that such a position was discriminatory, irrational, disproportionate and unjustified. Same-sex marriage is still not legal in Northern Ireland as a result of the DUP’s use of the petition of concern to essentially veto motions to bring the law in Northern Ireland in line with the rest of the UK and end discrimination on grounds of sexual orientation. There are currently two legal challenges pending in Northern Ireland on this issue.

During the hearing of a High Court action in Northern Ireland regarding the refusal of a bakery owned by Evangelical Christians to bake a pro-gay marriage cake (which was held eventually held by the Northern Ireland Court of Appeal to be discrimination based on sexual orientation), the DUP led the opposition at Stormont to the Equality Commission’s case and Paul Given (a DUP AM) drafted a Private Member’s Bill seeking to build a conscience clause into equality law in Northern Ireland. It would appear that any deal the Conservatives can reach with the DUP will contain some rather uncomfortable compromises. Tragically, the real victims of these compromises are the LGBT community in Northern Ireland who merely want to be treated the same as residents in other parts of the UK.

The DUP have never been strong advocates of the equality agenda.  In 2003, a DUP Policy Paper described the public sector equality duty as “inordinately costly” and an exercise in “futile consultations and meaningless analysis”. Such rhetoric, combined with their stance on sexual orientation discrimination, undermines the whole equality agenda.

A way forwards for equality under the new Government

So how can a more cohesive and less pick ‘n’ mix approach to equality be ensured? The solution is twofold: firstly, there must be recognition that equality is a human right which should not be subject to political compromise and secondly, there must be recognition that human rights are inalienable and the structures that assure them should be robustly protected and respected. Such structures should never be subject to political whims or point scoring.

The right to equality and non-discrimination is internationally recognised as the cornerstone of all basic human rights because of its inherent role in protecting “freedom, justice and peace in the world” (Universal Declaration of Human Rights, 1948). Threats to the protection of the right to equality rarely arise in liberal democracies because the right is perceived as a guiding light central to our dignity as human beings.

However, here in the UK, equality is not currently being protected in a holistic way; rather it is being picked apart and protected in a piecemeal fashion and left dependent upon political compromise. This alliance, however loose, between the Conservatives and the DUP could copper fasten the pick ‘n’ mix approach to equality.

In terms of the protection of human rights at a domestic level, both the Conservative and the DUP positions provide little comfort that human rights are inalienable or immune from political point scoring. The DUP Manifesto was silent on the future of the Human Rights Act. The Conservative Manifesto made a rather weak promise to leave the Human Rights Act untouched and to refrain from discussions surrounding leaving the European Convention on Human Rights, and the protective structures of the European Court of Human Rights, until after the Brexit negotiations have concluded in 2019. This leaves open the possibility of deleterious effects on our human rights, including our right to equality, post-Brexit.

This is particularly concerning from an equality perspective given that many of our equality laws are derived from our membership of the European Union. Even more worryingly, however, are the recent comments of Theresa May in the aftermath of the terror attacks in Manchester and London to the effect that if our human rights laws get in the way, we will just change them (or more likely discard them), which indicates that we live in a country where equality and human rights are viewed as disposable.

The Conservatives and DUP deal must not be at the expense of the basic human rights of people. Equality and all human rights are inalienable and indivisible, not a bag of sweets from which we can pick our favourites and discard those which are unpalatable at a particular time. In the words of a great equality activist, Harvey Milk: “It takes no compromise to give people their rights…it takes no money to respect the individual. It takes no political deal to give people freedom.”