Should the Law Prohibit Class Discrimination?
It is an extraordinary lacuna, that to discriminate on the basis of someone’s class, is lawful in the United Kingdom.
When a student informed me that she had been shortlisted for an interview with a firm of solicitors and during the interview, she was informed that there was too much of a social gap between her and her fellow solicitors, she had no legal remedy. Such an interview rejection would not have been without remedy in relation to any of the nine protected characteristics under the Equality Act 2010.
This prompts the question of whether there ought to be a tenth protected characteristic in the Equality Act and whether class discrimination ought to be prohibited under human rights law.
This article enquires what is it about the nature of that student’s background, my background and other working class backgrounds, which although fundamental to our identities and sense of self, makes working class heritage invisible to law?
In focussing on class discrimination, I am referring to a richly intersectional concept of class not the one portrayed by the media. Class, embraces race, religion, gender, rurality, as well as all the protected characteristics under the Equality Act and international and regional human rights treaties.
In arguing for the prohibition of class discrimination, I am not arguing that only working-class discrimination should be prohibited, but that all forms of class discrimination is unacceptable for democratic societies based on dignity, and that a prohibition on class discrimination would reinforce existing prohibitions rather than compete with different identities.
The central core of my argument is that, although there is sufficient space in much domestic legislation and in regional and international human rights treaties for governments, courts and human rights fora to read class into the existing prohibited categories of prohibited discriminations, this has not occurred.
The European Convention on Human Rights, for example, provides in Article 14 a right not to be discriminated against in being able to exercise the Convention’s Rights on ‘any ground such as, social origin, property, birth or other status’. This non-exhaustive list is repeated with differences in the major global and regional human rights treaties. It is also found in domestic legislation through the incorporation in the Human Rights Act and in many European states, which have incorporated the Convention and the other human rights treaties. Hence, it is possible to read into social origin, birth and other status — class discrimination. In fact, I would argue that its non-exhaustive nature, together with the context of property, social origin and birth positively invites such an interpretation. However, this has not generally been the approach of courts in the United Kingdom.
Further, on the basis of historical and existing jurisprudence, it is unlikely to occur for a long time and the effects of class discrimination are too significant to depend on chance and waiting. Therefore, I argue, that the time is now overdue for the inclusion of an express prohibition against class discrimination in law; national, regional and international, because the reliance upon existing standards has proven grossly inadequate.
There is, for example, a significant and unacceptable difference in life expectancy in the United Kingdom between different classes, even in boroughs of the same city, as was reported in a World Health Organisation study of Glasgow. This is a clear case of inequality affecting the right to life. However, the class aspects of the right to life, are currently very difficult, to litigate and to hold a government accountable in the courts under the existing Human Rights Act and the Equality Act.
The avoidable tragedy of Grenfell Tower starkly raised the issue of class. Race, asylum status, disability and age also played significant roles, however, in the Royal Borough of Kensington, Bourdieu’s ideas of cultural, economic and social capital played out clearly. Residents were perceived of having little economic, cultural and social capital and their justifiable concerns were ignored in such a way that I have argued elsewhere that it breached the Human Rights Act.
Because class remains an important facet of identity the question which requires addressing, is whether the prevention of class discrimination is appropriate for a legal remedy or ought class discrimination to be left exclusively to the political spheres?
The Victorians regarded the overcoming of specific aspects of class discrimination as appropriate for law. The Housing of the Working Classes Act of 1890 was designed to improve housing conditions, although the statute is a rare example of an inclusionary approach to class.
Historically, legislation in Europe, including during the Roman period, as well as in Asia, and during Colonial America focussed on class. In England, for example, the sumptuary laws such as the Statute Concerning Diet and Apparel 1363,prescribed who could wear specific styles of clothing and eat specific foods drilling down into the regulation of the most fundamental aspects of medieval personal life. This is a medieval example of law as a tool for social engineering.
It was not until the twentieth century that class eventually became formally invisible in the electorate with the passage of the Representation of the People Act 1928. Hence law is capable of dealing with class issues although within the United Kingdom there has been a significant difference, because, with rare exceptions, traditionally laws were intended to reinforce rather than remove class barriers — excluding those from poorer backgrounds.
I am arguing that the situation should be reversed. As successful as law has been in reinforcing class exclusions, law can be equally successful in including the excluded.
© Professor Emerita Geraldine Van Bueren QC, Doughty Street Chambers, and Bencher of the Middle Temple.
https://www.doughtystreet.co.uk
She is writing Class and Law (Hart), she Chairs the Association of Working Class Academics and is a Visiting Fellow Kellogg College Oxford.
