Impact of the Equality Act 2010 and Human Rights Act 1998 - Essay Example

Impact of the Equality Act and Human Rights Act 1998 due: Table of Contents Table of Contents 2 Introduction 3 Models of Justice 4 The Equality Act 2010 6 The Human Rights Act 1998 7 Socialisation 8 The Current Society and Diversity 10 Flaws in Appointment of Judges 11 Conclusion 13 Bibliography 13 Introduction Although crime rates have declined significantly in the United Kingdom, many young people are still held in prison.1 Several factors may play a role in advancing the discrepancy between these figures, mainly the criteria for imprisonment and the people tasked with delivering judgements. For instance, the law may require small offenders to be sentenced to jail, thus increasing the number of inmates. On the other hand, the agents tasked with making judgements of which actions are legal and which are not may be biased, thus sending more people to prison than is necessary. These agents include the police, probation officers and courts just to mention a few. Judges play a very important role in implementing the law of a country. They are tasked with deciding which party is on the wrong based on the law, and stipulating the punishment for parties found guilty. As a result, judges are required to be neutral in order to deliver a fair judgement. However, most judges in United Kingdom courts share the same characteristics, such as ethnicity, socioeconomic class and age bracket. As a result, their judgements may not be fully representative of the population, and are more likely to be biased. The high probability that most courts may not be delivering justice to the citizens is of concern, especially with regards to laws on human rights and equality. People from a particular race, gender or socioeconomic class, including those who share the same values and morals with the judges may be favoured by court rulings. Consequently, implementation of equality laws may not be sufficient under the watch of these judges. The motive of this essay is to provide evidence that the impact of the Equality Act 2010 and the Human Rights Act 1998 will be limited as long as the judges who interpret and apply these legal provisions are predominantly older, white, middle or upper-class men. The following sections will explore two models of justice relevant to the Acts, the main tenets of both Acts, and the factors that make the judges currently tasked with implementing these Acts unsuitable. These factors include the socialization process, the inherent diversity of society and the effects of old age on making sound judgements. Also, the paper will discuss the flaws in appointment of judges that result to concentration of only one social class at the realm of the criminal justice system. Models of Justice Herbert Packer, in 1964, proposed two models of criminal justice i.e. the Due Process and the Crime Control models. These two models have got opposing perspectives regarding the manner in which criminal justice should be handled. According to the Criminal Control model, the top priority is repression of crime since a free society can only exist when there is order. Criminal justice in this perspective should concentrate on vindicating the rights of the victims as opposed to protecting the defendant’s rights. Police are given first priority and any laws that prevent them from searching, seizing, arresting and convicting criminals should be eliminated. The model suggests that the information provided by the police and prosecutor is more reliable and the accused should be alleged as guilty until proven innocent. Most developing countries use this model of criminal justice, thus the rampant incidents of police brutality and abuse of human rights.2 The Due Process model, is a counterproposal to the crime control model. According to the model, the most important purpose of the criminal justice system is to provide due process, in other words fundamental fairness under the law. It maintains that criminal justice should concentrate on the defendant’s rights as opposed to the victim’s rights because the Bill of Rights specifically emphasizes the protection of the defendant’s rights. From this perspective, police power should be limited as much as possible to prevent official oppression of the citizens. Constitutional rights are also implemented to ensure that criminal justice authorities are held accountable to guidelines to ascertain that they follow the rules and guidelines and make judgements fairly and consistently. Furthermore, the government should hold anyone guilty on the basis of facts alone; a person is only guilty when the government follows the set legal procedures in establishing the facts. The model asserts that a person should be presumed innocent until found guilty through due process. The Equality Act 2010 plus the Human Rights Act 1998 both fall under the due process model of criminal justice. Both Acts emphasize the importance of equality among all citizens of a country. No person is regarded as superior to the other regardless of the differences in age, gender, sexual orientation or disability. Furthermore, the Acts postulate that everyone has got fundamental rights that should not be violated, and in case they are, the offender should face punishment. Also, the Human Rights Act provides for protection of the defendant through provisions such as the right to fair trial, the right not to be tortured or detained unlawfully and the right to life. Therefore, according to the Act, criminals also have rights which should be observed by other people, including criminal justice authorities. The Acts also restrict arbitrary power by the police or other law enforcement agents. Police and prosecutors are not given priority over defendants in court, and they have to provide evidence that proves their claims. Finally, a person is presumed innocent until proven guilty. However, both Acts do not stipulate the consequences of the offender in case they are found guilty. This is where the judges’ interpretation and application of the law comes in, thus making it important to consider their merits and suitability of holding these positions. Judges have to be neutral and implement the Acts without prejudice of race, religion, disability or socioeconomic class. The Equality Act 2010 Most of the elements of the Equality Act of 2010 were implemented by the end of October 2010. The Equality Act 2010, in a nutshell, stipulates what actions can be classified as discrimination, (direct, indirect or by association) harassment and/or victimisation. In addition, the Act also defines the protected characteristics, which are qualities possessed by a person that may make them discriminated against. They include gender reassignment, sexual orientation, sex, disability, age, marriage and civil partnership, race and religion or belief.3 Discrimination occurs as a result of unfair treatment of an individual due to possession of one or more of these characteristics. Victimisation, on the other hand, occurs when an individual causes harm to another because he/she has exposed certain wrongdoings.4 For instance, when an employee is dismissed because of reporting sexual harassment by her boss, the employer may be charged with victimisation. Harassment occurs when a person engages in behaviour that makes another one feel intimidated or violates their dignity, based on a protected characteristic. Although it was designed to replace several laws on discrimination and unfair treatment, the Equality Act 2010 did not change any laws already in place. The principal aim of the Act was to codify the many complicated Acts and Regulations which formed the foundation of anti-discriminatory law. Such Acts included the Equal Pay Act 1970, the Race Relations Act 1976, and the Sex Discrimination Act 1975 among several others. In addition, the Equality Act was drafted to promote equality and mirror the provisions of the four main EU Equal Treatment Directives. Since its implementation in October 2010, the Equality Act 2010 has helped many citizens of the United Kingdom get justice for violation of their dignity and/or discrimination based on their skin colour, sex, and other qualities such as religious beliefs and pregnancy and maternity. However, the full implementation of the Equality Act 2010 may be hindered by appointment of judges who do not realise its importance especially in the current society. The Human Rights Act 1998 This Act of Parliament was fully adopted in October 2000 after receiving Royal Assent on November 1998. The chief ambition of the Act was to incorporate the human rights stipulated in the European Convention pertaining to Human Rights into the United Kingdom law. Through the provision of this Act, an individual may report a breach of a Convention right in a UK court, without the need to go to the European Court of Human Rights located in Strasbourg.5 However, under the Act, individuals still retain the right to forward their cases to the court at Strasburg. Unlike the Equality Act 2010, the Human Rights Act 1998 is more diverse and encompasses more human rights that should be protected by the state. These include the right to life, freedom of speech, thought religion and belief, and protection from slavery and forced labour among others. According to this Act, public bodies including courts are prohibited from engaging in any actions that are incompatible with the Convention. Nevertheless, there are a few exceptions that may apply in certain circumstances, for instance where national security is at stake. The Human Rights Act of 1998 was passed by the Labour Party after an election victory the previous year. According to the party’s manifesto, the incoming government under the leadership of Tony Blair had promised to integrate the European Convention into the domestic law. The white paper titled “Rights Brought Home” stated that: “It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.”6 Implementation of the Act has been successful, with many British citizens getting access to judicial services in the British courts. However, as mentioned earlier, there may be hindrances in delivering just judgements owing to the characteristics of the judges tasked with making the judgements. These shortcomings will be discussed in the following sections of this essay. Socialisation Socialisation refers to the lifelong process through which human beings inherit and disseminate norms, customs and ideologies so that they can participate within the society. Basically, it is a means through which social and cultural continuity is attained.7 Socialisation is important in this context because it has a profound effect on an individual, thus determining his/her perception of what is right and what is wrong. Although it is a lifelong process, people tend to stick to the values and norms of the society and time they were brought up in. Consequently, it is usually common for people to view situations from the perspective of their culture or social upbringing. In the case of the judges being predominantly elderly, white, and middle or upper class men, socialisation plays an important role in their way of delivering justice. During the time when most of these judges were brought up, most of the socially acceptable practices today were regarded as taboos or sinful acts. For instance, homosexuality was considered a sinful act, and homosexuals were discriminated against rampantly. Also, other social inequalities such as racism and white supremacy were predominant during the early and mid-20th century. Colonisation was considered a rightful act, including forced labour and denial of basic human rights among the natives of the colonised countries. As a result, the social norms that most elderly people hold are etched into their long-term memory, and dictate what they perceive as wrong or right, regardless of the current social changes. Research has shown that as the brain changes with age, so does human behaviour. Physiologically, blood supply to the frontal cortex of the brain is reduced, thus limiting a person’s ability to communicate verbally or find the words they want. Also, they have to work harder at executive functions. Other regions of the brain that are affected include the medial temporal area which alters the person’s ability to make new long-term memories and think flexibly.8 Based on the age alone, it is clear that making sound judgements is a challenge for most elderly judges. It is of more concern when we consider judgements related to human rights and discrimination, harassment and victimisation because implementation of these important Acts may be hindered through appointment of such judges. Given the fact that most elderly people find it difficult to ‘think outside the box’9, it would be wrong to appoint them to implement laws that are contrary to their social norms and customs. For instance, a judge who has been brought up believing that homosexuality is wrong may find it difficult to rule in favour of a gay person in cases where the situation is not covered precisely by the Equality Act of the Human Rights Act. Similarly, other cultural norms that are now generally accepted in society such as women empowerment may not be reflected in court rulings that rely solely on the interpretation of the judge. The Current Society and Diversity The current society is highly dynamic, with new ideologies being generated and adopted every day. Furthermore, most of these ideologies differ significantly from those of past societies, for example male chauvinism and racism. Growing up, most of these judges lived in societies where these practices were considered normal. Although most of them do not practice these vices anymore, some still believe in them and would be biased while making judgements. For instance, a judge who believes in white race supremacy would pass a ruling in favour of the white race. Similar circumstances may happen in other areas of equality and human rights such as employment, entrepreneurship and education among others. As mentioned earlier, most elderly people find it difficult to process new information and engage in executive cognitive functions. Consequently, it would be easier for them to implement mainstream ideologies that do not require extensive thought and contemplation before making a judgement. Both the Equality Act and Human Rights Act list specific protected characteristics and human rights respectively that should not be violated. However, in the current society, complex situations may occur that are unknown to the judges but are covered by the two Acts depending on the interpretation. As a result, most of the people may be denied justice as a result of failure of a judge to understand their situation, relate it to the law and pass the correct judgement. Furthermore, both Acts encourage embracing diversity and equal treatment and representation of all people in public and private institutions. Therefore, to achieve full implementation of these Acts, the judges should be representative of the population. Currently, most judges share the same characteristics such as ethnicity and socioeconomic class thus may not understand the arguments of complainants outside of their castes. For instance, a judge who has been brought up in a predominantly black society would be better acquainted on the issues that face such individuals, therefore make a sound judgement. However, the current situation is contrary as most of the people who hold positions of power are middle or upper class male whites, representing a very minute proportion of the population. Given this lack of representation of other groups in society, it is highly unlikely that the Equality Act or the Human Rights Act will be implemented successfully. Judges from different ethnic groups, age brackets, socioeconomic classes and gender should be appointed to ensure that these laws are implemented as they were originally designed to. In addition, the society is constantly changing, thus amendments to the laws are inevitable. Having only one social class take the responsibility of delivering justice to the rest of the population will only lead to more problems since the law will only represent the needs of a small group of the population. This trend is already being observed where the majority of the population in prisons is made up of specific ethnic groups and members of the low socioeconomic class. Flaws in Appointment of Judges According to the Constitution, judges should be appointed based on merit and experience. Judges in different levels of justice have their criteria for appointment. For instance, a judge in the Court of Appeal is required to have, in addition to statutory qualification, at least ten years experience as a High Court judge. District Judges are required to have at least seven years qualified experience. Experience is a vital issue to consider when selecting judges, as is required in many other professional positions. However, experience and a good academic background do not always produce the best candidate for a judicial position. Clearly, this method of judicial appointments has not borne fruits as far as diversity and representation of the citizens is concerned.10 Statistics show that women and other minority groups are inadequately represented in the panel of judges. For instance, although women make up more than half of the population, there are only 19 High Court female judges out of a total of 106. More women are assigned deputy positions such as Deputy Masters, Deputy Registrars and Deputy District Judges. Of all the judicial staff, women make up only 24.5%. The situation is worse for minority groups; they make 5.8% of the total judicial staff, with the highest rank assigned to a member of the minority group being High Court Judge. Furthermore, all the male High Court Judges are white.11 The selection criteria for judges should be reviewed to include a diverse judicial system that represents the needs of the population. With regards to education and merit, the system only targets the highly educated individuals, most of whom attended private institutions. As a result, the candidates eligible based on the criteria include majorly the affluent in society who have access to higher education, while excluding the low socioeconomic class. The eligible candidates who end up being selected fail to represent the majority of the population, thus implementing the Equality Act and Human Rights Act becomes problematic. Women too have relatively less access to higher education as compared to men, and end up being the minority in the judicial system or being assigned deputy positions. As a corrective measure, the government should ensure that all citizens are given equal opportunities in terms of access to education and other public services. Making education accessible will help to reduce the illiteracy rates, as well as improving the socioeconomic status of the residents of the country. Women and minority groups should be encouraged to pursue higher education levels so that they can be eligible to take up higher positions in the judicial system. In addition, experience is an important aspect when assessing the qualification of an applicant. However, in this case, the experience of an individual would be better assessed by looking at the track record of the applicant. For instance, the applicant may have practised law for many years but still has not achieved anything of substance. Apart from the experience, an applicant should be required to prove that they remain up-to-date with current trends, since society is dynamic and new philosophies and ideologies continue to be adopted by social groups around the world. Conclusion To recap, we can see that it takes more than academic merit and professional experience to obtain a panel of judges who are suited to implement the Equality Act 2010 and the Human Rights Act 1998. Appointments should also consider the cultural background of the judges, even if it means reserving positions for the specific judges. The cultural background of an individual dictates a lot regarding what they choose to perceive as wrong or right, therefore, judges should be selected from a wide range of cultural backgrounds to achieve a comprehensive judgement. In addition, the government needs to implement measures to ensure that all the citizens, especially the minority groups, have access to resources such as quality education in order to stand a chance of meeting the qualifications of being appointed as judges. Failure to avail equal opportunities for everyone results to a cycle where minority groups are denied access to basic resources, including justice and protection from social inequalities. Bibliography Primary sources Equality Act 2010 Human Rights Act 1998 Secondary sources American Psychological Association. Memory Changes in Older Adults Accessed 10th May, 2015 (2006) Courts and Tribunal Judiciary. 2014 Judicial Diversity statistics - Gender, Ethnicity Profession and Age (2014) Donnelly J, Universal human rights in theory and practice. (Cornell University Press 2013). Macionis J & Gerber L, Sociology (Pearson Canada: Torornto 2011). Packer HL, Two models of the criminal process. (1964 University of Pennsylvania Law Review, 1) Secretary To the State For The Home Department Rights Brought Home: The Human Rights Bill (1997 Crown.) Sriram CL, Martin-Ortega O & Herman J. War, conflict and human rights: theory and practice. (Routledge 2014) Weinberg C, Justice is a way of being, not a moment in court: Charlotte Weinberg discusses the myth of justice in an unequal society. (2011 83 Criminal Justice Matters 22) Read More