Equality: A new generation?

• Jurisdiction: South Africa
• Pages: 214-240
• Author: Sandra Fredman
• Date: 23 May 2019
• Published date: 23 May 2019
• Citation: 2001 Acta Juridica 214

Equality: A new generation?*

SANDRA FREDMAN**

Oxford University

I INTRODUCTION

The beginning of the new millennium has brought with it a surge

of new energy in the struggle to find legislative measures to combat

racism and other forms of discrimination in Europe. The European

Union, after fifty years’ abdication of responsibility for addressing race

discrimination, was finally given power in the Treaty of Amsterdam

(ratified in 1999) to enact legislation on equality on racial and a range

of other grounds. Progress since then has been swift. A Directive

‘implementing the principle of equal treatment between persons irre-

spective of racial or ethnic origin’ was adopted in June 2000.

1

A second

Directive extending the principle of equal treatment to prevent dis-

crimination on grounds of age, disability, religion and sexual orienta-

tion (the ‘Framework Directive’) was adopted five months later.

2

In

Britain, a damning indictment of the ‘institutional racism’ in the Me-

tropolitan police forces has prompted new statutory activity to amend

the Race Relations Act 1976. In a development of seminal impor-

tance, it was agreed during the course of the Bill, to include a positive

legal duty on public authorities to promote racial equality.

3

At the

same time, a new equality guarantee, derived from the European Con-

vention of Human Rights , came into effect in October 2000 with the

Human Rights Act 1998. Nor does the activity stop there. In addition,

the equality guarantee in the European Convention itself has been

augmented by the new Protocol 12, which for the first time provides

a free-standing equality guarantee.

Is the result simply to create a bewildering array of equality provi-

sions which confound more than they correct? Or do these new pro-

visions break new boundaries for equality law? In this chapter, I begin

by examining the nature of the problem to be addressed and existing

measures to address them. Four problems are primarily identified:

economic disadvantage, legal exclusion, denial of difference, and lack

of political participation. Part III outlines the new legislative provi-

sions, focussing for the purposes of this paper on the European Union

Directives and the amending United Kingdom legislation. Part IV

* A version of this paper has been published as S Fredman ‘Equality: A New Generation’

(2001) 30 ILJ 145.

** BA (Witwatersrand) MA (Jurisprudence) (Oxford) BCL (Oxford); Professor of Law,

Oxford University, Fellow of Exeter College, Oxford.

1

Council Directive 2000/43/EC of 29 June 2000.

2

Council Directive 2000/79/EC of 27 November 2000.

3

Race Relations (Amendment) Act 2000.

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2001 Acta Juridica 214

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examines the concepts of equality that are utilized and asks to what

extent they are fashioned to address the identified problems. Finally,

the paper turns to the most innovative provision: the positive duty to

promote equality, and considers whether this ‘new generation’ equal-

ity right solves some of the difficulties previously identified.

II UNDERSTANDING INEQUALITY

(1) European Union

A glance at the ethnic composition of Europe reveals a complex

picture of ethnic diversity and differential disadvantage. Not only

are there significant indigenous minorities, including Gypsies, Jews,

and ethnic groups marginalized by the creation of new nation states.

In addition, millions of immigrants were actively recruited by Wes-

tern European countries during the post – war capitalist boom ‘for the

purpose of carrying out menial industrial tasks which members of the

native population increasingly avoided.’

4

It is therefore not an accident

that ‘foreign’ workers are concentrated in jobs with some of the worst

working conditions and wages in a country. This has been true for the

North African workers in France, the Turkish workers in Germany

and the Afro-Caribbean and Pakistani workers in Britain.

5

But discri-

mination is not only based on economic disadvantage. Strong pres-

sures to assimilate to the dominant culture are experienced as the major

source of oppression by many minority groups. At the same time, the

most blatant forms of racism persist, harshly demonstrated by the

pervasiveness of racist attacks. Even more worrying is the persistence

of explicit legal discrimination based on States’ rights to withhold

citizenship. In much of continental Europe, migrants are only given

limited legal rights of settlement, and many continue to be denied

citizenship even after several generations. This inevitably limits their

legal rights and usually means that they do not have the right to vote.

As a recent commentator put it:

‘As matters presently stand, twelve million nationals of third countries who

are legally settled in Europe are living in the shadow of a costly, uncertain

and precarious ‘‘legality’’, generating great fear, at every stage in their daily

lives.’

6

Contemporary racism in Europe cannot therefore be understood

simply as prejudice against individuals on grounds of their colour.

As the experience of both Nazism in Europe and apartheid in South

Africa have so bleakly demonstrated, attempts to supply a physiolo-

gical or evolutionary content to the notion of ‘race’ simply disguise or

4

P Panayi An Ethnic History of Europe Since 1945 (2000) 79.

5

See generally Panayi ibid 79-86.

6

B Vila Costa ‘The status of non-Community nationals’ in P Alston (ed) The EU and Human

Rights (1999) 412.

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EQUALITY: A NEW GENERATION?

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