Connolly, Michael; (2018) Easy cases making bad law: the English judiciary, discrimination law, and the statutory interpretation. Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

The definitions of discrimination provided by equality legislation are a measure of how far a society is willing to challenge deep-seated assumptions, attitudes, and patterns of inequality. The judiciary has a major role in shaping these definitions. This is evident from the antecedent American cases and those of the Court of Justice of the European Union, which worked with more aspirational than detailed legislative provisions. One might conclude that the legislation coming before the English courts was thus ‘ready-made’, presenting the judiciary with few interpretive difficulties. But on many occasions this has proved not to be the case, with the senior English courts producing a number of highly contentious decisions. Commentators, heavily critical of many of these cases, tend to analyse them by reference to external understandings of concept, theory, or policy. This work offers a unique internal critique of the process producing the cases subject to such academic scrutiny. It makes a textual analysis of leading English judgments on the definitions of discrimination, and does so through the lens of statutory interpretation - the judge’s primary function. The scrutiny finds that these judgments are technically flawed in terms of the process of statutory interpretation and the definitions produced; it also finds them to be overcomplicated, excessively long, and often unduly restrictive. As such, the thesis is that these cases were better, and more easily, resolvable using conventional methods of interpretation, which would also shape the definitions better to reflect the policies underlying the legislation. Although highlighting inexpert reasoning, the textual scrutiny reveals other threads, particularly notable in the narrow interpretations. There is an adherence to the common law’s notion of binary litigation, envisaging just two individual litigants (e.g. a worker and employer) necessitating a harmed individual and fault-based liability; this is at odds with the societal and group-based purpose of the legislation. One can also detect a lingering historical negative or indifferent attitude to matters of equality, often realised nowadays with an assortment of personal predilections. Consequently, suggestions for reform are based around these findings.

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