The case against the Equality Act

Alka Sehgal Cuthbert, author of a new report, argues that, while seeming benign, this landmark legislation has reduced us from being equals before the law to 'protected characteristics on legs'.

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The Telegraph reported this week that more than a dozen Oxbridge scholarships, bursaries and financial aid schemes have been made available to students based on their ethnicity and not their socioeconomic backgrounds. The Spectator has revealed that a Numerical Reasoning Test (NRT) was removed from a graduate scheme at HM Treasury ‘due to evidence of the test having adverse impact on candidate diversity’. It seems that immutable characteristics are replacing merit as the way to get ahead.

As Alka Sehgal Cuthbert, director of Don’t Divide Us, shows below, the Equality Act is the pinnacle of this process. It’s time, she says, to consider repealing it.

The dangers of DEI and the contradictions of the Equality Act will be among the many questions we’ll be considering at this year’s Battle of Ideas festival in Westminster on Saturday 17 & Sunday 18 October. Early-bird tickets are now available.

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An employer fails to recognise an employee’s birthday in the expected manner and she, comparing herself to another colleague who received a celebratory email and lunch, takes her employer to an employment tribunal. She has the protected characteristics (PC) of race (non-white). Her comparator colleague was white. And so, a case of racial discrimination is pursued, and recorded for posterity, when, really, the originating incident had little or nothing to do with race.

In another case, a colleague sends a birthday card to another colleague, also with a PC of non-white race, who was off sick with work-related stress. The claimant was also contacted multiple times over a three-week period during her sick leave by employers who said they had a duty of care to check in. Presumably they also have a duty of care to their governing body or shareholders to ensure financial prudence. The claimant filed at least 20 claims of disability and race discrimination, harassment and victimisation. The first case was dismissed, the second was upheld with an award of over £20,000 for injury to feelings.

‘It’s woke gone mad!’, I hear you say. Or the Marxists or fools have taken over. In actual fact, these are not outlier cases, few and far between. Rather, as a Don’t Divide Us report last year revealed, there are many similar cases. From a sample of 5,523 cases brought on race related grounds between 2017-2024, only five per cent were upheld. Our recent report, commissioned by Prosperity Institute, offers a historical account of the creation of the Equality Act, its core political and philosophical tenets, two detailed case studies, and three pathways between repeal and partial amendment.

The cases above sound trivial. But the loss of personal responsibility for individual judgment and responsibility inculcated by the Equality Act in its form and operation, can be fatal. We saw this in the appalling footage of police officers arriving at the scene of Henry Nowak’s murder. It was not a poorly written or poorly implemented race action plan that was responsible. In fact, the officers conducted themselves in complete accordance with requirements of Equality Act: a person with a recognised protected characteristic should not have their dignity violated (part of the definition of harassment) by sceptical questions, even when establishing the truth could have serious consequences.

The Equality Act: a revolution not consolidation

Contrary to the way the Equality Act was presented at the time, and how it is superficially understood today, it was not a mere practical consolidation of prior anti-discrimination legislation on race, sex and disability. The different terminology alone should set alarms ringing because anti-discrimination is not the same thing as equality. We’ve been sold a pup!

The latest Prosperity Institute report details how the Equality Act was the achievement of a group of international human-rights lawyers and academics who had fingers in various pies including academia, charities including the Runnymede Trust, and EU committees who write directives for member states to incorporate. These are technocrats, not elected representatives accountable mainly to the British electorate. They formed the Equal Rights Trust (ERT), which published a Declaration on the Principles of Equality in 2008: 20 out of 27 principles were incorporated into the Equality Act. Few cared to scrutinise something with such a benign title, yet one of the ERT’s founders, Bob Hepple, was very open about the radical scope and nature of their aim.

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Formal equality under the law was deemed insufficient to meet the aims of existing anti-discrimination laws. He offers little to substantiate his claim. We know his political outlook: he was a South African who had been involved in the Anti-Apartheid movement and had helped found the Campaign Against Racial Discrimination in Britain in the early 1960s. But it is worth considering the wider context that may have influenced his dismissal of formal equality.

In the period between the murder of Stephen Lawrence in 1993, the Macpherson Report published in 1999, and the introduction of the Equality Act 2010, new legal innovations were passed, including the Race Relations (Amendment) Act 2000, forerunner of the Public Sector Equality Duty in the Equality Act, and the Police Reform Act 2002. More importantly, two radical major cultural/political beliefs began to assume the status of common sense via the work of charities, academia, NGOs and – since Britain adopted the Social Protocol under Blair’s government in 1997 – the EU. The first belief is that systemic disadvantages are a feature, not a bug, of British society. The second is that racism is primarily a psychological phenomenon, and therefore, inherently subjective. These ideologically radical presuppositions are written into the Equality Act, along with one other unique feature: Protected Characteristics (PCs).

Democratic ruination

The term Protected Characteristics seems innocuous if a bit silly. But they are deadly to democracy for the simple reason that they effect a dissolution of the demos in legal and cultural understanding. Instead of a public – a demos – comprising morally equal and autonomous individuals who, in consenting to general law, also affirm ourselves as a demos, the Equality Act re-inscribes us as PCs on legs: bearers of PCs through which we access our relative portions of justice. There is no longer a general law that applies to all. And the coup de grace of the Equality Act is that all public institutions, and increasingly private bodies, are beholden to its reach. In short, Protected Characteristics are the legal translation of core political beliefs of multiculturalism, which were already normalised culturally. The PC belief system is the substance of the Equality Act, not anti-discrimination.

The ERT wanted to change the organising socio-political principle from formal equality to transformative equality: that is, to use the law to change society and culture. It’s not so much that the law is the original source of the divisions and moral confusion we see today, but the Equality Act entrenches the anti-democratic beliefs of multicultural politics deeper and disseminates them across our institutions and public life, to the point where even the Treasury pays obeisance to diversity rather than practical competency.

Thanks in large part to the Equality Act, without discussion or consent, Britain’s traditional legal and moral paradigm of freedom to do whatever was not prohibited has, in public discourse at least, taken second place to a different model of freedom. Instead of traditional negative freedom, which has shaped Britain’s legal and cultural development, we find ourselves in a state of unfreedom associated with positive liberty: we are free to do that which is agreed by our leaders and their proxies.

A common reaction when I say I’d favour the repeal of the Equality Act is shock at the apparent radicalness of the suggestion. But this is an inversion of reality: it was the Equality Act itself that was radical. Repeal or substantive amendment would be a restoration or reorientation towards older beliefs in our innate equality and freedom given by God and/or common law; another yet to be realised ‘Brexit dividend’, if you like. It would not be the whole solution to our ills, but it is an important precondition, not least because it would require that we act as morally autonomous, generally robust, individuals rather than legally and culturally sanctioned infants. Repeal would be an important ritual marker of adulthood!

Alka Sehgal Cuthbert is co-author, with Anna Loutfi, of Some More Equal Than Others: The Case Against the Equality Act, published by the Prosperity Institute. Read the report here.

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