5 Int'l J. Discrimination & L. 1 (2001-2002)

handle is hein.journals/ijdisclw5 and id is 1 raw text is: 







International Journal of Discrimination and the Law, 2001, Vol. 5, pp. 1-2
1358-2291/2001 $10
 2001 A B Academic Publishers. Printed in Great Britain

EDITORIAL

This issue focuses primarily on the problems with UK      anti-
discrimination law. Douglas Vick reflects on the implications of
Seymour-Smith in the European Court of Justice and Barry v Midland
Bank in the House of Lords for bringing indirect discrimination
claims. He identifies a retreat from a strong application of the indir-
ect discrimination concept, the effect of which is to make it harder
to bring an indirect discrimination claim. This shift, he argues, may
reflect judicial unease with the substantive concept of equality under-
pinning the concept of indirect discrimination, when the judiciary are
happier with the formal concept of equality and concern over the
constitutional implications of the judiciary challenging the policy
judgements of the legislature and fears of being accused of judicial
activism.
     These cases concern the quantum of proof necessary to establish
a prima facie case of indirect discrimination and how closely the
courts will examine the justifications advanced for indirect discrimin-
atory practices. How these points have been addressed, he argues, is
unlikely to encourage potential applicants, as the allocation of the
burden of proof and the quantum of proof are the most important
legal issues affecting the outcome of indirect discrimination cases.
     He traces the evolution of the tests used to show disparate
impact and objective justification. The effect of the European Court
of Justice's decision in Seymour-Smith, he argues, is that the
quantum of evidence necessary to establish disparate impact is
daunting and was even higher in Barry in the House of Lords, where
the Court also applied a very undemanding test to the Bank's justi-
fication of a severance scheme, and a similar approach was taken in
Seymour-Smith (No.2). The effect of these cases, argues Vick, is to
undermine the value of the notion of indirect discrimination in chal-
lenging sex discrimination as the amount of proof needed to make a
prima facie case is so high that many victims will be deterred from
pursuing claims as they will face insurmountable obstacles in gaining
access to the necessary statistical data.
     Richard Townshend-Smith reviews the successes and failures of
existing AD law more broadly, in the light of the Hepple and Parekh
Reports and considers the problems future legislative reforms need to
address. The problems with AD law in the UK, he argues, is that it
has imposed a negative prohibition on discrimination rather than a
positive duty to promote equality. Furthermore the legislation is com-
plex and there are inconsistencies between different pieces of legisla-

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