Sunday, 29 June 2008

The Minister Gives You Permission

Things get rather silly when the government admits that the main plank of a new piece of legislation is completely unnecessary, but it is all the more silly when the legislation in question will apply only in an impossible, or near impossible, situation. Things get worrying as well as silly when the wider effect of such a law is exposed.

The new piece of legislation, which is currently being debated in Parliament, expressly allows employers to choose a new employee (or someone for promotion) in order to give their workforce a more balanced number of women or members of ethnic minorities. One might think this would change the law because it has been the position for decades that an employer is not allowed to discriminate on the grounds of race or gender. As so often with the current government things are not what they seem, Ministerial explanations of the proposed new law have made this abundantly clear. The new law is to apply only where the employer is faced with two or more applicants who are otherwise equally qualified for the job and even then the employer is not obliged to offer the position to the "minority" candidate.

That necessarily means that the number of times it could apply is at most minuscule and more likely nil. When are two people equally qualified for a job? A number of applicants might have the same paper qualifications and, although this is unlikely, identical experience; but everyone is different and personality is always a relevant factor. We have all met people with brilliant paper qualifications who lack even the tiniest smidgen of common sense or charm, equally we have met people with little formal education who have personal skills that make them exceptionally suited to a particular career. The rest of us are in the middle - we are our own personal blend of formal qualifications, experience, charm, ambition, dedication, industry and the hundred other factors that lead to us doing our work the way we do. Unless there are two or more equal candidates the new law simply cannot apply; and that means that it cannot apply except in the most bizarre and unlikely circumstances, circumstances which I suggest will never arise.

What is the position under existing law? That is easy - no applicant may be refused employment because of their gender or race (other forms of discrimination are also outlawed). Where two or more applicants have the same qualifications it is impermissible to choose a man rather than a woman simply because he is male, or a white person rather than a black person simply because of pigmentation. But the courts are not stupid, they recognise semi-hidden discrimination where they see it; for example, where all employees of a company are male and there is evidence that time and again well qualified female applicants are refused work one can infer that discrimination on the ground of gender is taking place. Whether that inference is justified depends on the evidence in each case, but it is not a difficult conclusion to draw where there is no rational explanation for selecting only men.

The new proposal will not expressly require an employer to employ a woman or a person of a minority race, it merely says that it is permissible to take into consideration any lack of "diversity" when deciding between equally well qualified candidates. Not only is it the case that the employer can make that decision under the existing law but the risk of discrimination being inferred from a course of conduct means that such a decision is often sensible in order not to infringe current legislation.

OK, so this proposed new law changes nothing. No harm in that, eh? Sadly I foresee a number of potential harms.

English law presumes that legislation has a purpose and the courts must make that presumption when interpreting Acts of Parliament. Where an Act says "when two applicants for employment are equally well qualified" or words to that effect, the courts must interpret what is means by "equally well qualified". To conclude that it is impossible for two people to be equally well qualified would render the law meaningless, therefore it cannot mean "equally well qualified" in the literal sense, it can only mean "with generally equal experience and qualifications" or some such formula. The Tribunals will be full of claims and if you listen carefully you can hear the arguments being rehearsed already: "my greater experience outweighs his better paper qualifications", "the job requires a minimum of my paper qualifications which no amount of experience could provide", "this is a job requiring charisma and I was the only applicant with charisma" and so on and so forth. Those claims are all well and good but will mean nothing unless the possession of generally greater experience and qualifications gives an entitlement to the job. As far as I am aware that is not the position under current law, yet this new proposal appears to assume that it is the case.

Such a presumption is a joy to a pure meritocracist but, like so many theories, it does not reflect the real world. Try this example. Mr and Mrs Joe Ordinary are well-mannered, law-abiding, hard-working but as thick as shyte. Their children mirror their parents' qualities. Mr and Mrs Joe Ordinary have worked in a local factory for years doing mundane work but doing it honestly and with a smile on their faces. "Mr Manager, our Wayne's out of school this June, have you got anything for him?" and the next year it is Charlene and, two years later, Jason. If vacancies exist it would be a very stupid manager who turns away the young Ordinarys in favour of someone with more GCSEs. Perhaps he will have to do so under the new law.

And what is to happen where there are two candidates of generally equal ability, if the man is chosen rather than the woman is it now to be presumed that discrimination has occurred? The existence of a law giving permission for an employer to choose the woman can readily be interpreted as giving rise to a presumption that he should do so if he employs few women already. This presumption would, again, give meaning to an otherwise meaningless law.

There is, I suggest, a far more worrying aspect to this law which, again, follows from contrasting the new provision with the existing legislation.

The structure of the present law is: "these acts of discrimination are not permitted ..." the prohibited acts are then set out. That structure is based on the general principle applicable throughout the common law countries (England and Wales, the USA, Canada, Australia, New Zealand and most former colonies) that we are all permitted to do as we wish unless the law says it is not allowed. This is based on the three-pronged principle that (I) the State is our servant not our master, (ii) the State should step in to control behaviour only when it does significant harm to others and (iii) the State should describe the prohibitions it imposes with clarity so that we know where we stand.

The proposed new law, as described by Ministers, involves the State giving permission for behaviour which is already lawful. At the moment the right to employ someone in order to give gender or racial balance to the workforce is an inherent right of an employer simply by reason of him being an employer. No one has given him that right, he has it because it has not been prohibited. Now the source of that right will be the State. This follows the precedent created by the Human Rights Act under which the State has taken to itself the power to grant us a whole series of "rights" which we previously possessed independently of the State.

In the areas covered by the Human Rights Act the presumption has changed. Where previously everything being allowed unless prohibited by the State, now the State gives us the right to act as we will in the absence of the State imposing a limitation on the right it has already granted. Everything comes from the State - the right to act comes from the State and any limitation on that right comes from the State; previously it was only the latter. This change of emphasis is of huge importance because the more examples there are of the State giving permission to do that which we could previously do anyway, the closer we get to a general ban on doing anything unless expressly authorised by government.

We can expect many more measures like this in the next two years. Mr Brown's hopelessly weak position within his parliamentary party allows other ministers to live out the dreams they formulated when active in student politics thirty or more years ago. It is their once in a lifetime opportunity to put into effect the statist ideals which led them to the Labour Party in the first place. What better example can there be than a law which ministers themselves say changes nothing except for turning an inherent right into a right granted by the State?

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