Michael P Foran

This article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article argues that personal characteristics that are generally morally irrelevant, and that are socially salient in that they carry with them a prevalence of inequality-laden attitudes, amount to necessary and jointly sufficient conditions for recognizing a ground of unlawful discrimination. Other conditions, such as immutability and the presence of relative group disadvantage, will be assessed and dismissed as contingent but not necessary conditions.

The principle of equality before the law is often characterized as procedural or formal in nature. Recent scholarship has offered a more nuanced representation of this critique, maintaining that the principle is procedural in nature but emphasizing its instrumental value. This paper challenges that characterization, arguing that equality before the law is best interpreted as a foundational constitutional principle which manifests substantive restrictions on the content of legal rules. Equality before the law, as an independent constitutional principle, should not be confused with the broader value of equality, nor with the rule of law: it incorporates aspects of both, mandating that legal subjects, including legal officials, be treated as prima facie equals in the creation, interpretation, and application of the law. As such, it in an integral normative foundation for the common law constitutional order. Any analysis of the common law constitution must adequately account for and give proper recognition to this foundational constitutional principle.

This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.

This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned with harm that is done to social groups or that laws prohibiting indirect discrimination seek to reduce or eliminate advantage gaps between social groups must be rejected as inaccurate. While principles of non-discrimination and principles of affirmative action often operate harmoniously to foster respect for the moral equality of persons, they each have a general affinity with distinct ethical traditions: deontology and teleology respectively. As such, we should conclude that indirect discrimination provisions are examples of formal and not substantive equality. Where rights to non-discrimination conflict with telic equality goals, UK law protects the rights of the individual.