The Death of Meritocracy: Positive Discrimination

Contributed by Joe Timmins

    The British Equality Act 2010 was based on British principles that gender should never have any influence in employment. Amendments to the Equality Act in April 2011 allowing positive  discrimination, or “positive action” as our politicians like to say to defer attention away from the fact that they are encouraging discrimination against groups in society and people in their own constituencies, contradict British values and the amendments should be repealed.

Positive action, for those that are not familiar, is the act of giving preferential treatment to under represented groups in society. While I will be focusing on positive action to correct the disproportionate ratio of men to women in senior positions, please note  that this is not the exclusive use of positive action. This is because the Equality Act replaced the Race Relations Act 1976, Sex Discrimination Act 1975 and three major statutory instruments protecting discrimination in employment on grounds of religion or belief, sexual orientation and age. Therefore positive discrimination can also be used to give preferential treatment to ethnic minorities being called to the bench for example, a white male dominated profession.

I was inspired to write on this topic after reading in the newspaper that the Judiciary Appointment Commission was beginning to enforce positive action. As it stands, it is not unlawful for a women to be appointed to the bench ahead of a man if both candidates are of equal merit. Imagine this scenario: Person X has 12 A’s at GCSEs, 3 A levels (AAA), and a Bachelor of Law from Kingston university. On top of this , person X has had a successful career working in partnership with person Y as a barrister. Now imagine Person Y has 12 A’s at GCSEs, 3 A levels (AAA), and a Bachelor of Law from Kingston. On top of this , person Y has had a successful career working in partnership with person X as a barrister. Who would you hire? You can’t say. They’re seemingly indistinguishable. But what if I told you person X is me and person Y is Sophie, a women, and therefore I do not get the job. This is not the solution to getting more female judges. Instead we should be encouraging women into the profession through childcare arrangement schemes, offering longer maternity leave, offering greater protection against preexisting prejudice through legal reforms and that’s just to name a few options. At the moment we are setting the impression in young peoples’ minds that it is acceptable to consider gender during employment and corrupting the generation of people that are much more liberal than ever before. The April 2011 amendments enforced on us by the European Commission are radical and unnecessary when we are seeing a rise in the number of women in senior positions anyway. Antagonising the rest of the population and women who achieved their position under the old system based exclusively on merit is equally unnecessary as  a result.

In reality the use of positive discrimination is limited, but likewise to many laws in the English legal system, it is the principle of the laws that count and this often sets our legal system apart from those, in continental Europe for example, that employ Roman law. Therefore the limited use of positive discrimination does not hinder the argument that the April 2011 amendments should be repealed. The use of positive discrimination in the Equality Act also presents an interesting argument that the European Commission perhaps has too much influence over our legal system. The changes in 2011 directly opposed the original Equality Act which explicably stated ‘merit’ is the only legal determinant when employing someone. I hope that positive discrimination will be outlawed very soon in the same way every other form of discrimination has been; and then stay that way.

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