Opinion: In equal measure
Britain has had equality law – prohibiting discrimination and advancing equality – in one form or another for nearly 60 years. We now have a variety of protections and positive obligations covering several identities, including race, sex and disability, but arguably we are some way from achieving a fully inclusive society. Professor David Ruebain questions why this is, and whether the law alone can achieve inclusion?
Why is inclusion important? I believe inclusion is the process of ensuring that diversity – people with various identities and beliefs and who are from different backgrounds – can thrive, and not merely seek to ‘fit in’ to an otherwise homogenous culture or environment. I believe that it is in all our interests to seek and attain this, and that the benefits of inclusion satisfy our inherent nature.
As a lawyer, I was involved in many cases which, to my mind, advanced inclusion. And since the Race Equality Act 1965 – the first British equality legislation – we have seen many examples of progress through a symbiotic relationship between progressive forces, community action and parliamentary response. This progress has been mirrored in many other countries who have moved forward in addressing structural oppression and disadvantage. However, under-representation and exclusion remain persistent; as evidenced by significant disparities in income and wealth, educational and health outcomes and other indicators.
In my inaugural professorial lecture at the University of Sussex in 2022 (see below), I sought to explore the history and politics behind Britain’s evolving legislative framework, considering both the strengths and weaknesses of it. Amongst the latter, there are inadequacies in using law to address competing or contested private views and practices, its inability to put to bed conflicts of morality or beliefs, the failure of societies to materially address privilege and, in some countries, an increasingly neoliberal approach to more and more areas of both public and private life, which is antithetical to inclusion.
David Ruebain Professorial Lecture: Can the law deliver inclusion?
- Video transcript
Can the law deliver inclusion: David Ruebain’ s Professorial lecture 8 November 2022
[INTRO CARD] Can the law deliver inclusion? Professor David Ruebain (Pro Vice Chancellor of Culture, Equality and Inclusion) Tuesday 8 November 2022
[Professor Sasha Roseneil] Good evening, everyone. My name is Sasha Roseneil and I'm the Vice Chancellor of the University of Sussex and it's my enormous pleasure to welcome you all to the Attenborough Centre this evening, for this inaugural lecture. An inaugural professorial lecture is a very special moment at which the university marks the appointment or promotion of a new professor, and gathers to hear from them some of the thinking that has contributed to their award of the title Professor. I'm very much looking forward to my first inaugural lecture at Sussex and particularly to hearing from my colleague, Professor David Ruebain. David is our Pro Vice Chancellor for Culture, Equality and Inclusion. Prior to his appointment at Sussex last year, he was Chief Executive of the Conservatoire for Dance and Drama. And before that, Chief Executive of the Equality Challenge Unit, a policy research agency set up to advance equality, diversity and inclusion in the UK further and Higher Education and Research Sectors. David began his career as a lawyer and was a solicitor for 21 years laterally as Director of Legal Policy at the Equality and Human Rights Commission of Great Britain, following a career in private practice as a partner and a founder at the Department of Education, Equality and Disability Law at Levenes Solicitors. In addition to his current role, David is Visiting Professor of Law at Birkbeck, University of London an Equality Advisor to the Premier League, which is, I think, particularly impressive, and a fellow of the British American Project and a consultant to Black Thrive Global and the EW Group. David has published and taught widely on Education, Disability, and Equality Law and Practice and has been involved in numerous voluntary and other organizations. He's a past Chair of the Law Society of England and Wales Mental Health and Disability Committee. He was an expert to the European Union, a member of the Editorial Board of Disability and Society, a Board member of Equinet European Network of Equality Bodies, and a former member of The Advisory Group of OFA, the Office of Fair Access. He's co-editor of Blackstone's Guide to the Equality Act, 4th Edition just recently published under the Equality, Disability and Social Policy. The second edition of which has just been commissioned. Most recently, he co-presented colloquia with Yates Norton on Disability Interdependence and Allyship and with whom he's recently published on Radical Belonging and Exploration of Disability Commitment, Interdependence and Care. David is the winner of RADAR's People of the Year award for achievement in the furtherance of Human Rights for Disabled People in the UK in 2002. He was shortlisted for the Law Societies Gazette Centenary Award for Lifetime Achievement for Human Rights in November 2003. In August 2006, David was listed as one of the 25 Most Influential Disabled People in the UK by Disability Now Magazine, and in 2013, listed in the Disability News Services Influence Index. He's also listed in the Disability Power Lists October 2014, 2015, and 2017. And just last week, he received an Honorary Doctorate from the University of Law for his outstanding contribution to Equality, Diversity and Inclusion and the furtherance of Human Rights for Disabled People. It's really a huge honor to be here to listen to David tonight and his lecture is called, Can the law deliver inclusion? Over to you, David.
[Professor David Ruebain] Thank you, Sasha for that. Really kind introduction. And Good Evening everybody. And thank you so much for coming despite rain and landslides apparently. In my time, I've spoken a lot of public events. If I'm honest, I really like public speaking. However, the bar of an inaugural professorial lecture is high. And so, this is possibly one of the most terrifying. I, this evening, would like to explore whether law, specifically British law, can bring about an inclusive society. I will begin by reflecting on the nature of inclusion and why we might want it before considering its legal history and parameters, its impact, strengths and weaknesses, and then touch on contrasting perspectives. I'll draw on my experience as a practicing solicitor and in policy development, and conclude with some thoughts from personal experience, including as a disabled person. Before I begin, there are many to whom I owe thanks; past and present colleagues, including lawyers and activists, friends and family. For now, I would like to mention the following who are here tonight. Henry Bonsor, a Sussex University award-winning Masters graduate, who provided considerable help with research, two colleagues from the School of Law, Politics, and Sociology here at Sussex, Professor Amir Paz-Fuchs, who listened and responded to my thoughts and Head of School, Professor Jo Moran-Ellis. In fact, she's not here. She's got COVID, but still mention her anyway, who facilitated and supported this event. And Niamh Cameron, a Sussex graduate and Graduate Events Associate, who along with colleagues in the events team organised this event. I would also like to mention a few other friends, Hannah, Meg, and Jack Cinnamon, Mark Hopper, Bruce Stanley, Fiona McKay, a human rights lawyer, Professor Tom Shakespeare, who's been centrally involved in disability liberation work, all who have listened and responded to a draft of this lecture. And finally, my companion, Yates Norton, about whom I will return later. And there are one or two others in the audience I'll be mentioning.
So what is inclusion? As it happens, we've set out a definition of this in the university's recently refreshed inclusive Sussex strategy. Inclusion is the process of ensuring that diversity, people with different identities and beliefs and from different backgrounds can thrive and not merely seek to fit in to an otherwise homogeneous culture or environment. In summary, it's about ensuring the success of people with diverse identities beliefs and backgrounds. It is distinct from the concept of equality, which is a quasi-legal idea essentially concerned with fairness. Why is inclusion important? There's plenty of research to demonstrate that diversity improves outcomes and that diverse organizations do better perhaps instrumentally that it improves the bottom line. But I think that there is a more fundamental reason relating to the intrinsic nature of humans. Before I consider this further, I think that there is a prior question of why as a community, we might be undiverse or even exclusive. There's far more that can be said about this than can be given justice to tonight. But I tend towards A Critical Analysis of Exclusion or Oppression, which focuses on historical conflict and consequential structures and systems rather than exclusively current behaviour. Although that does matter. So we can't really understand racism outside of historic considerations of slavery and colonialism nor sexism or indeed homophobia without an analysis of patriarchy and so on. These are epistemological frameworks that justify subjugation which continue to play out today. So, it's not just about eliminating offensive or hurtful speech and behaviour nor indeed is it just about being nice to others. It's also worth mentioning that one consequence of this is that the concept of oppression is not about just any disadvantage that a person might face but rather where that is structurally driven or to coin a phrase, prejudice with power. Essentially, we are social creatures by which, I mean, we thrive in community with others. That's obviously not an original thought. "No man is an island," said John Donne, a maxim explored by numerous other artists and philosophers. In Buddhism, Prattyasamutpda, commonly translated as dependent origination or dependent arising is the principle that all dharmas or phenomena arise in dependence upon other dharmas. So, if this exists, that exists. If this ceases to exist, that ceases to exist. While solitude can be nourishing, ultimately we thrive in relationship with others. Meanwhile, identities, particularly those which purportedly sets us apart from others are to a considerable extent a product of our societies. A construct regardless of whether or not, they are immutable. I recognize there's a lot to unpack there, but that's for another time. Whether we're old or young, black or white, disabled or non-disabled, and so on, does matter. But I contend principally in the context of temporal considerations such as what we are taught to value, how the environment is designed, how we are organized and hence, at least in part a function of societal division and oppression. Outside of these ideological constructs, we are merely human or perhaps commonly human, or as my friend Micheline Mason wrote, incurably human. And as social animals, I contend that anything which separates us or pushes us to coalesce towards homogeneity and hence, against others who are different is damaging to each of us even where we might not notice. And even indeed where we may attain privilege. That is not by the way an argument against organizing in groups of people with the same or similar identity for some specific purpose. We may need or want that for lots of very understandable and good reasons, but I would like to advocate for our interdependence across identity. Not only because we have more in common but particularly because division and separation is personally as well as existentially damaging to each of us. I will return to this, but first, I would like to consider the development of British Law in relation to inclusion and against its antagonists, inequality and oppression I will run through a timeline of key equality legislation. Though there are, of course, many earlier instances of progress, such as the Equal Franchise Act 1928, which granted women the right to vote on the same terms as men. And briefly, the attendant sociological and political drivers, though there are many other excellent narratives and a full exposition would require much more time. To begin, in the latter half of the 20th century, people principally from British colonies, and then the Commonwealth, including many who had served in the British Armed Forces, during the 2nd World War, migrated to Britain to help fill post-war UK labour shortages. Broadly, this continued until the 1971 Immigration Act, when Commonwealth citizens already living in the UK were given indefinite leave to remain. After this, a British passport holder born overseas could only settle in the UK with both a work permit and proof of a parent or grandparent being born in the UK. They became known as the Windrush Generation after HMT Empire Windrush which arrived from Jamaica on 22nd June, 1948. As is now very well documented, they faced overt and cruel racism typically captured in the quote, "No, blacks, no dogs, no Irish" signs erected by white British landlords, and of course, infamously set out in Enoch Powell's Rivers of Blood speech in April, 1968. Campaign groups, such as CARD, the Campaign Against Racial Discrimination and others were formed to lobby for legislation to protect against racial discrimination. And so, the first piece of anti-discrimination law in Britain was the Race Relations Act 1965. The act prohibited discrimination on grounds of colour, race, or ethnic or national origins but only in the limited instance of places of public resort. The act also established the Race Relations Board to investigate complaints of unlawful discrimination. Next up, although not explicitly a piece of Equality Law, it is worth referencing the Sexual Offences Act 1967, which decriminalized male homosexual acts in England and Wales but only on the condition that they were "in private" i.e. no more than two people present and between two men who had attained the age of 21. Note that the same was not extended to Scotland until 1980 and Northern Ireland until 1982. Hitherto, male homosexuality was illegal at the time with buggery technically punishable by imprisonment for life. Interestingly, lesbians had not been similarly criminalized purportedly because Queen Victoria didn't believe that they existed although that view is contested. it's important to note that full equality did not arise until the 21st century. And in the interim, the conservative Thatcher government passed the infamous Clause 28, otherwise known as, Section 2A of the Local Government Act 1988, which banned state schools from teaching or promoting the "acceptability of homosexuality as a pretended family relationship". Meanwhile, it's also notable that prosecutions for homosexual behaviour for under 21 year olds or not in private actually went up in the years following the 1967 Act. The 1967 Act was the culmination of several attempts to implement the findings of the Wolfenden Committee, which had been tasked in 1954 with bringing legislation into line with modern laws. The Homosexual Law Reform Society had campaigned for these changes, and it was later followed by the campaign for Homosexual Equality, Pride, Stonewall and other increasingly vocal organizations who press for change. Back to racism. The need to strengthen the 1965 Act had become clearer when persistent egregious racism was highlighted in a report published by Political Economic Planning, a think tank which would later become the Policy Studies Institute, entitled a Survey of Racial Discrimination in England alongside pressure from the Race Relations Board. And so, the Race Relations Act 1968 extended protection to include discrimination within employment, housing, goods and services, public services, and membership of a trade union. The Board was given powers to bring civil proceedings against those who are found to have discriminated. However, a major omission from protection was the exemption granted to the police in their operational duties. On to sexism. Before 1970, it was common practice for there to be separate lower women's rates of pay. For example, at the Ford Motor Company, there had been 4 grades for production workers; male skilled, male semi-skilled, male, unskilled and female. On 7th June 1968, 850 women machinists working at the Ford Factory in Dagenham went on strike for equal pay after discovering that they were being paid 15% less than men for doing the same work. The demands of these women memorialized in the 2010 film, Made in Dagenham, paved the way for the Equal Pay Act 1970. The effect of the act was to remove separate lower women's rates of pay, and hence was the first piece of legislation that enshrined the right to pay equality between women and men. It gave an individual a right to the same contractual pay and benefits as a person of the opposite sex in the same employment where both undertook like or equivalent work. Nevertheless, job advertisements continue to advertise rolls exclusively for males or females and advertisers showed women in stereotypical roles of domesticity or in submissive work and sometimes still do. Meanwhile, there was a significant increase in activism through what became known as Second-wave Feminism. The Women's Liberation Movement held their first conference in 1970, which also saw disruption of the Miss World Pageant and both Spare Rib and Red Rag were first published in 1972. Eventually, the Sex Discrimination Act 1975 made it unlawful to discriminate directly or indirectly against either sex and set up the Equal Opportunities Commission (EOC). Back to racism again. By the early 1970s, it was becoming clearer that confidence in the framework established by the 1965 and 1968 acts was diminishing. Discrimination was still widespread and the number of successful campaigns to the Race Relations Board had remained consistently low. Aligning the Sex Discrimination Law, the Race Relations Act 1976 extended unlawful race discrimination and replaced the Race Relations Board and the Community Relations Commission with the new Commission for Racial Equality. Complaints could now be brought directly to civil courts or industrial tribunals, now employment tribunals, and the CRE was given powers to enforce legislation and conduct inquiries. And for about 20 years, that was it. However, since the 1960s, disabled people had begun to organize against their oppression. As with other liberation movements, there are many stories of key people, organizations and events. Too many to fully recount in this lecture but I will highlight a few. Paul Hunt was a disabled person and as was much more common for disabled people then, a resident of a care home, Le Court, ran by a charity, Leonard Cheshire. Le Court was a semi self-help community where each resident contributed, some washed-up, some cooked, some mowed the lawns. Everyone took part. However, changes to stay organized welfare resulted in a shift of authority to a Management Committee of Non-Disabled Non Residents. The residents resisted the change. They went on to stage a Pyjama Protest, mass defiance of the rule that they had to change into their pyjamas by 6 P.M. Their protests earned them eviction notices only rescinded following a direct appeal to group captain, Leonard Cheshire himself. However, the real crunch came one dinner time when the matron read out the following new rules without any prior discussion or consultation. One, all TV's off by 10:30 P.M. Two, everyone needing help to be in bed by 11:00 P.M. Three, residents wishing to go out after dark must ask for permission. And my favourite, four, no public exposure of bodies in hot weather. Clearly, this would terrify non-disabled people. Paul saw disabled people's places being in the community. In addition, he increasingly felt that existing long-established disability organizations did not reflect the interest of disabled people and that disabled people should organize and form their own organizations. He wrote a letter to that effect to the guardian published on 20th September 1972. The result of this and related developments was a growth of activism, self organized groups of not for disabled people and the Disability Movement which led protests about independent living, rights not charity, representation in the media, access to employment, housing, and services, and inclusive culture, education and art. Fundamentally, it led to disabled academics and others developing the Social Model of Disability. Whereas the traditional charity or medical models called for prevention repair or rehabilitation, the social model demanded a change in society through civil rights. It is important to note that this activism and ambition learned from the black civil rights and feminist campaigns, adopting and adapting their tactics, including snappy slogans like, "Nothing about us, without us," "Rights not charity," and the pithy “Piss on pity." My favourite, that was. By the early 1990s, thousands of protesters were taking to the streets, demanding new anti-discrimination legislation for disabled people. These protests were led by the Rights Now Campaign of which I was Vice Chair, and in the audience is Adam Thomas, who was coordinator and Agnes Fletcher, an activist who was information manager at Disability Awareness in Action at the time. And the activities included those of the Disabled People's Direct Action Network (DAN). I personally remember the Stop Telephone Demonstrations outside of ITV, which resulted in the station going off air as disabled people invaded the studio. And some of you may have seen the recent television drama, Then Barbara Met Alan, which memorialized somewhat inaccurately DAN. Eventually, after much resistance to change by the government, in 1995, the Disability Discrimination Act was enacted, the first piece of legislation protecting disabled people against various forms of discrimination, and in fact, the first Equality Law under a conservative administration. The act eventually gave disabled people new rights against discrimination in and for reasonable adjustments to a whole range of areas including those covered by Sex Discrimination and Race Discrimination Law. After their victory in 1997, the Labour Government accelerated equality and human rights legal protections. They move swiftly to incorporate the European Convention on Human Rights into UK law through the Human Rights Act 1998, which enabled claims to be brought in a British Court. The act also requires new laws to be human rights compatible, courts to interpret existing laws in ways which are compatible and public bodies to respect and protect human rights. In summary, these are rights to life, to prohibition against torture and slavery, to liberty and security, to a fair trial and due process, to respect for private and family life, freedom of thought, conscience, religion, expression, assembly and association, to marry, to protection of property, to education, and to free and fair elections, and also requires non-discrimination in respect of each. Then the Disability Rights Commission Act 1999 established that body, Britain's first, sorry, third equality commission alongside the CRE and EOC. 1999 also saw the passing of the Sex Discrimination Gender Reassignment Regulations, which prohibited discrimination in employment and vocational training for people intending to have who are currently undergoing or who had already undergone gender reassignment. Many of you will recall in 1993 the awful murder by white men of Stephen Lawrence, a young black student waiting at a bus stop. Racist violence, was of course, by no means unusual, but following persistent campaigning and a commitment by the Labour Party in their 1997 General Election Manifesto, the new Home Secretary, Jack Straw, established a public inquiry chaired by Sir William McPherson, a retired high court judge and former soldier, and advised by Tom Cook, a retired Deputy Chief Constable, Dr. John Sentamu, the Bishop of Stepney and later Archbishop of York, and Dr. Richard Stone, the Chair of the Jewish Council for Racial Equality. Published in February 1999, the report found that the police investigation was, and I quote, "marred by a combination of professional incompetence, institutional racism and a failure of leadership." Amongst its 70 recommendations, it also abolished the Double Jeopardy rule which stated that people could not be tried for the same crime twice leading in 2012 to the conviction of Gary Dobson and David Norris for Stephen's murder. And a year later... When's that, 2000? Race Relations Amendment Act was passed to give effect to many of these recommendations. Meanwhile, following ongoing and growing concerns about the paucity of women MPs, 2002 saw the Sex Discrimination Election Candidates Act in enabling measure which allows political parties to use positive discrimination to improve women's representation in elected bodies. Between 2003 and 2007, 4 pieces of legislation were enacted to prohibit discrimination directly and indirectly on grounds of religion and belief and sexual orientation. The Civil Partnership Act 2004 permitted same-sex couples to form civil partnerships. The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 extended this to include opposite-sex couples after a case that went to the Supreme Court in 2018 whilst the Marriage Same-Sex Couples Act 2013 permitted same-sex marriage. Then, and also, in 2004, the Gender Recognition Act, whilst technically not a piece of anti-discrimination legislation, established a process for a transgender person to apply to a Tribunal for a gender recognition certificate to permit them to be legally recognized in the gender they live in all be it that the process and requirements remain highly contested. The Disability Discrimination Act 2005 extended and improved rights for disabled people by amending the 1995 Act to establish a new Public Sector Equality Duty similar to the Race Equality Duty. The act also introduced provisions to increase accessibility rail vehicles. Anti-Discrimination Legislation was extended to older workers by the Employment Equality Age Regulations 2006, later supplemented by The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, which prohibited compulsory retirement taking place unless objectively justified. The 2006 Equality Act established the Commission for Equality and Human Rights, which later became known as the EHRC. This brought together the work of the DRC, the EOC, and CRE, and extended powers to cover all identities protected in law as well as advancing rights. The act also created a Public Sector Equality Duty to promote equality of opportunity between women and men, similar to the race and disability duties.
And finally, all of the above was consolidated and harmonized into the current Equality Act 2010. This recognizes and affords protection to 9 protected characteristics or identities; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, and sex, including for those associated with or presumed to have such an identity in employment, education, goods, facilities and services, premises and public functions. It brings together and extends to all protected characteristics except marriage and civil partnership, the 3 existing Public Sector Equality Duties requiring public bodies to have due regard in carrying out their functions to eliminate unlawful discrimination, advance equality of opportunity, and foster or encourage good relations. By the way, you'll be examined on all of this later on.
Incidentally, Northern Ireland has different but similar legislative arrangements because of its separate political and historic considerations resulting in the Good Friday Agreement. I should also note that separate criminal legislation has progressively outlawed hatred on grounds of race, religion, disability, sexual orientation and transgender identity. Meanwhile, the European Union and its predecessor, the European Economic Community, of which we were, of course, a member for over 47 years developed and evolved its own equality laws which informed the laws of member states including the UK. In particular, the Treaty of Rome 1957 prohibits discrimination on grounds of nationality and sets out the Principle of Equal Pay for men and women for equal work. And then Article 1 of the Lisbon Treaty 2007 states that, "The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities." These values are common to the member states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men prevail. Consequently, these treaties generated over a dozen equality directives. More recently, the British government has announced an ambition to repeal the Human Rights Act and replace it with the denuded British Bill of Rights. Under the Premiership of Elizabeth Truss, that was put on hold. But as of the 25th of October 2022, with Dominic Raab, a long time opponent of the Human Rights Act, back as Justice Secretary, who knows for how long the bill may well return. As an aside, even if the Human Rights Act is repealed, it's unclear whether the UK will remain a member of the 46 Member State Council of Europe, and so, be bound by the European Convention on Human Rights and subject to the European Court of Human Rights. Abolition of the Human Rights Act may have other consequences including undermining the Good Friday Agreement in Northern Ireland. Finally, the UK is a signatory to the United Nations treaties, several of which address equality including the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms... The Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of Children and the Convention on Rights of Persons with Disabilities. Some of which permit for direct complaints by individuals. So, perhaps unsurprisingly, we can see that in parallel to the growth of progressive agendas, the law has evolved to address inequality and exclusion. Indeed, I would argue that some of the more brutish and egregious examples of oppression are now less likely than before all be it by no means eliminated. To put it another way, the centre of gravity has shifted towards inclusion driven by a symbiotic relationship between progressive campaigns and the law.
To explore this further, I will now turn to the use of law not just to afford a remedy to a wrong person, but more broadly to drive change, to drive inclusion. In their Guide to Strategic Litigation, the Public Law Project, the PLP, has defined it as a method to bring about significant changes in the law practice or public awareness via taking carefully selected cases to court. Strategic Litigation is sometimes referred to as Impact or Test Case Litigation, and aims include creating public awareness and debate, setting important precedents, and achieving change for people in similar situations, and policy change, sometimes, regardless of success in the actual case. Relatedly, Public Interest Litigation originated in the US to achieve social reform and benefit disadvantaged social groups. It was taken up in the UK and also elsewhere, such as in India which has championed poverty-oriented jurisprudence. Strategic Litigation has a long history illustrated by the case of Somerset v. Stewart 1772 which established the right of an enslaved person on English soil not to be forcibly removed and sent to another country for sale, for example, Jamaica. The case attracted a great deal of attention in the press and members of the public donated money to support the lawyers involved incidentally on both sides of the argument. In the U.S. in the early 20th century, the National Association for the Advancement of Colored People, the NAACP, one of the oldest and most significant black civil rights organizations used strategic litigation as a core part of their campaigns and activism, and in 1916, created its own in-house legal department. The most celebrated case brought by the NAACP was undoubtedly the successful School Desegregation Case Brown v. The Board of Education of Topeka of 1954, though it's notable that success brought about a fierce backlash by conservative interest groups in the form of the so-called Southern Manifesto. In the UK, the Housing Charity Shelter, the Human Rights Charity Liberty, the Child Poverty Action Group, and others including the Equality Commission's, built a reputation for taking strategic and public interest litigation. For example, the PLP took cases challenging the response of local authorities to homelessness applications by children and a local authority's decision to cut funding for community-based mental health services. In their 2015 paper, effective use of the law by the voluntary sector, the Bearing Foundation also give a number of examples of successful strategic litigations, and I would like to highlight four, which in my mind directly impact inclusion. Limbuela was brought by Liberty, a human rights charity to prevent destitution among asylum seekers who had failed to apply for asylum "as soon as reasonably practicable." Success in the House of Lords resulted in a change in the interpretation of the Nationality Immigration and Asylum Act 2002 to read socio-economic entitlements into civil and political rights documents and statutory guidance was revised such that the case has had a direct impact on reducing destitution within the asylum system. In the East Sussex County Council Case of A and B brought by the Disability Rights Commission, a challenge was made against the Blanket No Lifting Policies that fail to take into account the specific needs of disabled individuals. A high court judgment found a violation of their right to respect for private and family life in Article 8 of the Human Rights Act and went on to provide a framework for public authorities to balance the dignity of the individual with the health and safety of employees through individualized risk assessments. Some of you may have heard of the Southall Black Sisters Case, a case challenging Ealing Council's decision to withdraw funding for domestic violence services focused on black and minoritized ethnic women. The counsel conceded during the hearing, but nonetheless, the judge gave a ruling and provided helpful guidance regarding the application of the Race Equality Duty. And finally, Rutherford v. Secretary of State for Work and Pensions, sometimes known as the Bedroom Tax Case, which was brought by the Child Poverty Action Group to challenge discrimination against disabled children and their carers who require an extra room. It resulted in a successful ruling of unlawful discrimination, and therefore, a change in practice affecting disabled children across the country, disabled people, actually, across the country. Part of my career as a solicitor was spent at Levenes Solicitors, where I led a Specialist Department, as Sasha has kindly described, and I took cases for several charities and non-governmental organizations representing and supporting disabled children. I'd like to pick a few. In Regina versus IPSEA or the Independent Panel for Special Education Advice, I acted for the charity in a challenge to guidance produced by the Secretary of State. The Court of Appeal held that a school's approach to disabled children must always meet, and I quote, "the needs of the child and not the needs of the system," and that had a significant impact on the lives of many disabled children at school. In an East Sussex County Council Case, Bird and others, we effectively changed a policy which refused to specify in detail provision to meet the needs of children with Downs Syndrome. The consequence of which was to enhance rights again across the country. Similarly in Regina versus Harrow, the high court held that the Local Education Authority had an "absolute non-delegable duty to arrange specialist provision," and specifically, they could not rely on a lack of resources argument nor indeed on whether somebody else should provide that support as a reason for not doing so. And finally, in Buniak v. The Governing Body of Jenny Hammond Primary School, there was a technical but nonetheless, important point about whether schools should support disabled children even if they don't have what was then known as Statement of Special Educational Needs. So, given all of this, turning to the title of this lecture, surely, the answer, Can the law deliver inclusion is? Yes. Not quite.
And I would finally like to turn to the law’s limitations. First, whilst Equality Law can clearly address power imbalances between public or private organizations and individuals, it is not very good at resolving competing or contested private rights between individuals. For example, if a person wishes only to associate with people like them and not others, the law has little to say about that, and indeed, I would say shouldn't. Whilst I would challenge that person's perspective and decisions, I don't believe that the law should. Second, it's also not very good at handling conflicts of morality or beliefs between individuals. For example, concerning disputes between disabled people and feminists over abortion rights. It may be able to apply a rule, but it doesn't resolve the underlying tensions. Third, proponents of Critical Legal Studies assert that laws are anyway not neutral and to some degree are devised and implemented to maintain the status quo. This may seem contradictory given my analysis of the developing legal framework to advance equality, but I believe that their arguments have some merit. In summary, this analysis was principally founded by a group of legal scholars in the U.S., who reflecting on their experience with the Civil Rights Movement, Vietnam Protests, and other political and cultural challenges to authority. Noted that the weight of the law against progress seem to contradict the assumption that American Law was fundamentally just and the product of historical progress. Instead, the law seemed like a game, heavily loaded to favour the wealthy and powerful. From that perspective, law positively mitigates against demolition of structures that inhibit full inclusion. It is essentially conservative, at best, incremental, not radical, preserving little legitimacy. And note, for example, the adage ‘property is nine-tenths of the law’. In her book, Gender, Alterity and Human Rights: Freedom in a Fishbowl, Ratna Kapur argues that Western human rights are axiomatic with liberal freedom, and that human rights have been deployed to advance political and cultural intents rather than bring about freedom for disenfranchised groups. I'm not sure that I would go that far but I see her point. Similarly, Critical Race Theory posits that the law cannot be race-blind. And Kimberlé Crenshaw, one of its most significant proponents, and others argue that the law fails to see the intersection, for example, of race and gender in any event. My anecdotal experience is that notwithstanding the success as outlined earlier that the law cannot be too far ahead of society. It cannot move more than say, 5° beyond the current centre of hegemonic gravity. On the other hand, it can move it and it can be moved by it. Laws cannot only act as a bulwark against oppression but can provide and frame a national moral compass including a framework about who we are. When it comes to liberation and inclusion, however, it is a starting point, a floor, not a ceiling. Fourth, even the concept of equality embedded in law that of opportunity and outcome is limited, although our Public Sector Equality Duty does arguably reach further. In essence, I believe that these concepts of Equality Law are rooted in Western liberal concepts of fairness in a competition rather than, for example, overall dignity. And to that extent, the impact on inclusion is reduced. In contrast, it's worth considering a couple of other approaches. Ubuntu is an African concept which focuses on community. "A person is not a person without people," or I am because we are. It is a belief in a universal bond of sharing that connects all humanity. The African Journal of Social Work defines it as a collection of values and practices that people of Africa or of African origin view as making people authentic human beings. While the nuances of these values and practices vary across different ethnic groups, they all point to one thing, and authentic individual human being is part of a larger and more significant relational, communal, societal, environmental and spiritual world. Critically for this lecture, Ubuntu is central to the post-apartheid South African Constitution and its inclusion of socio-economic rights and prioritizes a communal as opposed to individual or competitive approach to the understanding of rights and how they are integral in fostering harmony within a multicultural society. Buen Vivir is a South American indigenous pluralistic world view. It translates to good living or well living, a concept of collective well-being harmony driven, doing things in a way that is community-centric, ecologically balanced and culturally sensitive not about the individual, but instead the individual in the social context of their community. Both of these philosophies shift attention from individuals to communities and bring me to my final critique of the law as a driver for inclusion and what it lacks. I want to turn to consideration of personal relationships and allyship as transformative tools for advancing inclusion and eliminating oppression. As mentioned earlier, I hold strongly to the analysis of oppression as structural and systemic, but that nonetheless, individual relationships are key. This part of my thesis is very much anecdotal drawing considerably from my experience as a disabled person and drawing on conversations and relationships with many people. Some of whom I've already mentioned, including Tom Shakespeare, who has written importantly about some of these themes. The following are ideas and considerations which are very much the shared product of my personal relationship and work with Yates Norton which we have discussed and developed in a number of colloquia and in a recently published article, as Sasha mentioned, in the online Journal, Tohu. Accordingly, I use the pronoun 'we' to reflect this. As I mentioned at the beginning, as humans, we are both different and the same, at its best this can engender lives characterised by commitment, care, allyship, and interdependence. The unity that comes through relationship-building challenges our worldview that says that human flourishing can best be achieved through individual and national competitive engagement. In doing so, it can provide the foundation of inclusion. In a particular way, disabled people have long had to consider the meaning of human connection, care, and relationships often because they've been treated not only as less than or subhuman, but critically as dependent, which when juxtaposed with society's norms that elevate the importance of independence in adulthood, infantilizes them and militates against true equality and reciprocity in relationships. The history of the Disability Movement in the UK is at heart about reframing. For example, David Mitchell or Sharon Snyder argued that "inclusion is only worthy of this designation if disability becomes more fully recognized as providing alternative values for living that do not simply rarefy reigning concepts of normalcy." Further, legalistic approaches to equality not only fail to recognize the extent of the importance of relationships and interdependency, but also of art culture, and forms of representation within those relationships.
Last year, Yates and I participated in a public conversation presented in the context of a screening of the film, Face of our Fear, 1991 by the major avant-garde disabled filmmaker, Stephen Dwoskin. In the conversation, we drew on the work of the disabled queer Korean writer, Mia Mingus, and her concept of Access Intimacy. For Mingus, inclusion and accessibility should not simply be a logistical legal requirement or a mechanistic set of accommodations. Accessibility is not only about justice for those who are structurally excluded but also liberation and transformation for everyone since separation and isolation militates against interdependence, and hence, human flourishing. We must focus on lived experience and also human connection in thinking about both rights and justice work, foregrounding our understanding through intimacy as a key part of liberatory work. Of course, such understandings come from long-term commitment and listening to each other which in turn requires relationship-building, not simply service provision. As Mingus writes, the understanding of access needs emerge out of our shared similar lived experience of the many different ways ableism manifest in our lives. Mingus is making a point about the crucial role of intimacy, attention and care in liberatory work beyond questions of access and inclusion. Given the accessibility and disabled people are so often treated as problems requiring logistical solutions, Mingus is compelled to underscore this point. We share Mingus' emphasis here as well as the frustration that such basic elements of human connection, of love and commitment, have to be emphasised for some but not us embarrassingly so. It reveals the extent to which disabled people have been dehumanised. This brings us back to a core part of our thinking, the key importance of relationships to achieving liberation and inclusion, and that these relationships are interdependent. Through this, we recognise how we are transformed by connection and not the division that comes through individualism and competition. There are many examples of this and for now, I will point to two. First, the alliance and allyship between coal miners and LGBTQ+ activists during the Miners' Strike in the 1980s as memorialized in the 2014 movie, Pride. And second, Richard Wilkins and Kate Pickett's work the spirit level and the inner level which highlight the "pernicious effects the inequality has on society's eroding trust increasing anxiety and illness." So, what is interdependence? We posited as the mutual reliance and flourishing that arises between two or more groups or individuals. It differs from dependent relationships and those where some are dependent, and some are not. It is also different from what is often described as co-dependency. A pejorative concept implying the mutual reinforcing of what are essentially emotional hurts. Importantly, it is yet also different from independence, which particularly in neoliberal forms of late-stage capitalism valorises competition in ever-increasing aspects of community and society. And interdependent relationships, each party may be emotionally, economically, ecologically or morally reliant on but also responsible for and to each other. Many authors, philosophers, theologians, and leaders have written and spoken about interdependence in many cultures throughout history. But for disabled people, it has a particular resonance given their history of exclusion. Interdependence directly challenges oppressive narratives and requires of us all that we not only recognize but also benefit from the full humanity of each critically regardless of whether we agree or even like each other. Keeping interdependence at the forefront of how we think through our relationships and that with others allows us to recognize, celebrate, and honour difference without creating or entrenching division. At the same time, different identity can be a double-edged sword. It can be the means through which oppression is resisted by providing an identity we can cohere around. But it can also be the means through which oppression operates by classifying, marking out, separating and controlling individuals of that identity. For this and other reasons, in recent times, there has been a growth of analyses and positioning of identity politics, political positions based on the interests and perspectives of social groups with which people identify. There is again not time to explore the many and various movements and writers who have considered the meaning and relevance of identity. But these ideas do raise profound questions about unity and separateness. At heart, we believe that we need to address and name oppression as it relates to people of identities, but at the same time, ensure that our identities do not wholly define us. This is difficult but we must grapple and allow ourselves to be unsettled by these complexities. Critically, this can only happen if we sustain attention and connection through commitment. Foucault say some interesting things about the importance of relationships and unity. For example, he talks about homosexuality in terms of the relations that can be established invented, multiplied and modulated. One of these relations being friendship. And so, to want someone was wanting a relation with someone. This relation can trouble and disrupt alliances which have been prescribed in a hegemonic idea of what relationship should be. "A way of life can be shared among individuals of different age, status, and social activity. It can yield intense relations not resembling those of that institutionalize. It seems to me a way of life can yield a culture and an ethics."
So back to commitment. At least in our culture, increasing weight seems to be placed on a person's purported individual qualities, whether they are likeable or not, for which there are innumerable subsets; attractive, powerful, witty, virtuous etcetera. In some ways, this approach is no doubt a function of ordinary complex human relationships, what draws us to some people and not others. But inasmuch as that is at least partly socially constructed, which I believe it is, it is encouraged by an increasingly neoliberal individualistic dominance. There are many consequences to this including, some have argued, a rise in nationalism and populism as a reaction to atomize communities and an attempt to elevate the collective against that atomization that accomplishes, sorry, that accompanies individualism. That aside, the breadth and depth of human connection is undermined by this individualism. In particular, the essence of belonging is fractured by the constant qualification of the requirement of being liked or attractive or powerful or virtuous or witty and also that we must hold the same or similar views. Even if we are ostensibly successful in this competition, we nonetheless live under the threat of failure. We can easily fall off our pedestal. Commitment then is the decision to remain in a relationship or community notwithstanding the vagaries of individual factors, although I accept that they are not irrelevant, and clearly, there are complicating circumstances. We think of inclusion as ongoing and relational. We can never fully know someone, but we must, nonetheless, always strive to know them beyond our attitudes and assumptions about them and regardless of whether we like them or don't, fall in love or out of love with them, etc. Of course, this is never an easy or smooth journey. Indeed, the closer one gets to another, the more each person struggles are revealed, and this can make relationships more difficult. But as much as we are not expendable and cannot be treated as problems requiring solutions, we also are not easily consumable. We are never finished as if we were a product. Using a keyword in Eli Clare's writing, we have to grapple with each other as complex living beings in all our changing diversity of experiences, feelings and ways of living in and sensing the world.
So, what is the answer to the question? Fundamentally, we do need law and policies but we also need more transformation through relationships. Relationships are important because they are necessary to re-evaluate historic structural disadvantage and will ultimately lead to unity. Thank you. [audience applause]
[Professor Donald Mcgillivray] Thank you, David for a fantastic lecture. And it's now my pleasure to be dazzled by the light. But, secondly, to open up a Q&A with David. And before I do that, just to say, my name is Donald MacGillivray, and I'm the Head of the Law School at Sussex. We've got about 20 minutes or so, not just for Q&A, but as David said, he would also welcome comments, disagreements, and possibly even mild heckling.
And in the spirit of inclusion, we would like to encourage questions or comments from students and non-academic guests first. And if they are not forthcoming, then the academics can get their chance. There are two roving mics. They are from the either side, I believe. So, who would like to kick off? That's better.
[David Ruebain] That's the exam that they have to do at the end about the law.
[Donald Mcgillivray] Oh, I forgot about that. Yeah, thankfully, there's not an exam. There was a question there. And if we can get a discussion going, that would also be wonderful.
[Audience question 1] I always want to ask who's going to win the World Cup. But that might be the last question to answer. But I've never read a law book and I've never read like how the laws are written out. But one of the things that I've always been interested in is how we understand, or we think we understand what our rights are enshrined in the law. But often, we don't understand what our responsibilities are and I'm kind, and it seems to me that the intimacy care relationships, really carry lots of responsibilities, and I don't know if they're written down. They may be but I've always been struck by the fact that I have the right to hold an opposing view and I have the right to let you know that I disagree with you. But I have a responsibility to do that in a particular way. And I wonder if the law needs to address that?
[David Ruebain] That's a live argument. As you might know, Rob, at the moment, and in fact, it's part, of the criticisms of the Human Rights Act particularly from the right are framed in that way. It talks about people's rights but not their responsibilities and it won't surprise you to know that that's not where my political leanings are. But I think, nonetheless, there's something interesting in that. There's something interesting, and I think that the focus on rights in the way that it has been characterized is part of an individualistic way of thinking. That doesn't mean to say that I think rights are wrong. I think rights are right, if it’s possible to say that. But I do think that what's rights in the context of individualism is singular and narrowly focused. Whether we then think about the law by framing it in terms of responsibilities, I'm not so sure because then, it becomes a tension or a kind of like a tug-of-war type approach. I suppose, what's interesting to me is thinking about rights more in the context of relationships and the idea of interdependence and the idea of mutuality in that way rather than to posit responsibilities as the opposite of right sort of thing. But I mean, these are sort of semi formed thoughts and I'm sure colleagues here may have other better thoughts.
[Donald Mcgillivray] Thanks, David. Are there any questions that follow on from that theme? Different question? If not, let's have another question and let's just open it up generally.
[Audience question 2] Thanks, I'm a researcher and a PhD student at IDS but I have a growing interest in the law. My question is about commitment. I think that's a fantastic way to finish the talk. I think it really encapsulates, I mean, I would agree that it encapsulates really, you know, my idea as well of inclusion. But just in terms of, maybe mindsets regarding commitment, did you, and maybe, I would ask you to expand on it, if that's possible, but whether you mean that, you know, we should make a specific effort to commit to one another as human beings or whether we should only, for example, simply have an openness to commitment towards one another because, you know, if, you know, I may not get along with my neighbour, with everybody. So, you know, we may choose not to commit to each other, but or maybe your opinion is that we should kind of regardless and that only, and also whether inclusion can only really happen when commitment has been made towards each other. Thank you.
[David Ruebain] Yes. I don't know the answer. I think that was a great question. I mean, I genuinely don't know because I think these are, in ones, as a fit, well, maybe not as a theory because there are many other people who have written a lot better. A lot more and a lot better than this brief summary that I've given. But I'd like to talk about commitment really as a counterpoint to this idea of choice, where we essentialise choice as the basis for everything really, whether it's shopping or people. And I think there are probably, there are different types of commitment. There's not one kind of commitment but we can be committed to everybody in a community, such as in the University. We may have very little to do with lots of people given that there are, well here, 18,000 students and three and a half thousand staff who may not even meet many of them. We probably won't but I think there's something about a mindset of a commitment to them. And, of course, that will be very different from a commitment to somebody you share a house with or your partner or a friend or whoever it is. So, there are probably gradations and a differential. But, to me, it's more of making a stand about this idea that we're just going to pick the people, who right now, are the ones that are valid and not those who aren't and ignore the rest. At best, ignore the rest. It's something about that. Not sure that I'm very clear in my mind but something along those lines.
[Audience response] Thank you very much. That's great. Thanks.
[Audience question 3] Hello. You're going to have to excuse the kind of plain English language, David, but I'm really interested in the idea of what happens when you have two groups who are excluded, if you like, who are in conflict, where does the law? How does that work?
[David Ruebain] Well, I mean that's happened a lot. We can all think of examples, and I gave one about some disabled activists and some feminists around abortion is a current ongoing conflict between many some disabled activists, and what appears to be the majority population supporting a relaxation of the law in respect of assisted suicide. And both sides feel that that the essence of their strong beliefs, is existentially central to their existence. Maybe that's putting it a bit too strongly for those who advocate for assisted suicide. But for them, often, it's a matter of terror of having to face the most awful painful death. There isn't an easy answer, but I think, you have to have a relationship. What's interesting to me, if I just take that example, what's very interesting to me, and I have happened to look into that, all of the legal cases that have gone to court, which have sought to affect a relaxation in the law would otherwise prevent assisted suicide have been brought by people who become disabled; acquired something. It might be a very awful progressive condition, but they've become disabled or had an accident and become disabled later in their life. And when you unpick that, what's interesting is what's behind it is a sense, a huge sense of loss and fear, understandable loss and fear. That loss of the lives that they've had and fear of the deteriorating sense of self and sometimes a lot of fear of pain. It's certainly true or, you know, whatever it is that they fear is likely to happen. Whereas, there are many disabled people who have that level of impairment, who are born with that level of impairment, maybe have never been able to feed or clothe themselves or wash themselves or toilet themselves but don't have that sense of loss, and therefore, their sense of themselves as different and don't feel that they need to die or they want to be helped to die, and rather fear that the narrative around. "We need to be able to die," threatens their existence existentially. So, what do you do about that? Because those are, they're mutually exclusive positions. Frankly, you're not going to reach a nice answer, certainly, by examining those positions. But I do think, through relationships, people can come to know and understand things differently. I mean, it's very easy. You can talk about these things in trite ways and people talk about their other half, you know, all that, when they're talking about their partners almost in order, that this person completes me, but there are many examples in everyday use. But I think this is true on a meta level and that we probably need that for some of the most intractable conflicts that we have between groups. And that's why, I think, you know, the law is not... The law can give us a rule and say, "We'll do this, but not that”, and some people may be, may feel victorious or justified and others will feel oppressed, but it won't, and therefore, it won't solve that conflict. And even, there's many instances, that have been like in many cases, between people of faith and LGBTQ activists, there’s the Bed and Breakfast Case in Devon or Cornwall. And there was the Gay Cake Case in Northern Ireland. Some of you may remember. And you can get a rule which will decide what the law says, but it doesn't resolve the conflict. Not really, I mean... So you have to have, whether it's what I say or something else, if your ambition is inclusion and depending on how you define it, but you talk about, an inclusion for me, must mean, harmony and togetherness and connectedness and all those other things. Then, I think you have to have something around relationships. But please disagree with me.
[Donald Mcgillivray] I don’t know Sasha if you're going to disagree with David, but you certainly had your hand up.
[Audience question 4- Sasha Roseneil] I could. I think that was a really fabulous lecture, David. Thank you. I can offer kind of one question /challenge and one, maybe, point of disagreement. The question and challenge, I suppose, is to extrapolate from what you've said here, which is, I think, developing a kind of an analysis that says that law and policy as a kind of necessary conditions for inclusion, but then, they're not enough. And that it's in the relational sphere that inclusion is achieved. So, the question there is, so what's the implication of that for equality, diversity and inclusion work within the University? You know, how does this relate to your PVC work? What's the agenda therefore, for us, at Sussex? And then, I suppose, the challenge is a kind of psychoanalytic challenge of this kind of ideal world, in which we can reach some kind of state of inclusion and harmony and unity? You ended on unity. It's a lovely optimistic notion, but actually, people are divided, conflicted, not unified within themselves, you know, constantly in conflict within themselves and in their relationships. Relationships are not just harmonious. They are disagreeable. They are definitely full of conflict. So how do you deal with that?
[David Ruebain] How would I deal with that? I don't know, I mean... Yes, perhaps I should start by saying I don't know. I do think though that... I mean, I revert to my own life, to my own experience, and to anecdote. So, if you are noticeably disabled, which I am and other people here are, you know, you see how things are in the world immediately. So new people who meet you, you can see in their eyes if there's some discomfort or uncertainty. Often, there's kind of not wanting to get it wrong, a whole range of things, and I'm sure other people, with noticeable differences whether it's because of your heritage or even, you know, sex differences as well will, you know, there are differences. We will all become attuned to them. But we also notice that through connection, that dissolves to, say, considerable degree. Maybe not completely, but it does. Now, that might be superficial. And maybe there is a core of... or an irreducible separateness, which is not commensurate with interdependence. But my instinct is that that's not true. And even if it were, it's more interesting to think of it as being not true because you can just achieve more. And then, if you assume that difference is in some way, insurmountable, difference in the sense of keeping people apart is insurmountable. And I mean, there is the other side, I mean, there's so much here but there's the other side of it that as we become closer to each other, we reveal ourselves more, and more of the, you know, the difficult bits, the stuff which we try and hide from ourselves, let alone from anybody else. And you know, 50 percent of marriages or relationships end in divorce or separation and all of that stuff, which is obvious and familiar. But I suppose, I shrink at the idea that that's in any way inevitable because of the nature of human beings and it doesn't seem to me to be the case. So I would say, when I was born... What am I? 183 years old. So I was born whenever that was. But anyway, since I was a child, things are different for disabled people now. There's no doubt about it. Things are different for the way that people think about disabled people and talk to disabled people Doesn't mean to say that there's no oppression. And, of course, and I would contend that that's true generally. Now, it's, you know, and then people will understandably say, "But there's this terrible thing that's happening there. What about that?" And there are terrible, terrible things, And I don't have... Probably what I should have said at the beginning as I don't have a roadmap. But I think that my best bet is to maintain and increase legal protection because of this moral centre of gravity point that it, and giving people a remedy, but that you also then build on that. And the bottom line is I don't know what else to do or at least I don't have another model. So, on your point about what does that mean for a university, I think that, I mean, I've got this in my, as you know, my job title I have this fascinating extra bit, not just about equality, but about culture. And I think it's, you know, what does it mean for us to build a culture which is all the things that we would agree we want. Collegiate because it's nice but also, because of, you know, what we're here to do; teaching, learning, research, and knowledge exchange, and that all happens in that way but also a place where people want to be. What does that mean? And I've got ideas but I suspect we all have idea. In fact, I'm sure we all have ideas but I think it must mean reaching for facing conflict and moving through it rather than pretending it's not there and also not assuming that conflict is inevitable. Please disagree with me.
[Audience question 5] Hello, David, thank you for your lecture. You asked for disagreement so you're gonna get it. Following on from what Sasha was saying, you talked earlier about the law being just a little bit ahead of society and it sounds like you've got quite a positive view of the role that law can play in terms of pushing for equality and I'd agree with you. But it also seems to me that at the moment, the law is under attack left, right ,and centre. So when I was younger, you had symbols of the law, judges, being attacked for being very conservative in their viewpoints. And now, it's almost the opposite. And what my kind of thought as you were talking was that's all well and good so long as there is respect for the rule of law or on the acceptance of the way that the law works. And I just feel that if you've got a situation, where in very recent times, the Adviser to the Government on Legal Affairs, is attacking the role of the people who are implementing the law. Then that creates fear in myself about whether or not the law can do what you say, in terms of delivering inclusion because it's not theoretical. It's the actors involved in the law. It's the police, it's the judges, it's the legal system, and you know, some of these things feel like they're slipping backwards. So I'm just a bit worried about the future.
[David Ruebain] Well, is it Gavin? Yeah. I wouldn't disagree with you, Gavin. And by the way, maybe, I said this, in which case, I didn't mean it. I don't think the law is necessarily ahead of everybody else. I think it's symbiotic. I think it can pull and be pulled by. I mean, there's a lot more I could have said about that but I wanted to try and think about social movements and the law and the juxtaposition of the two. So I think the law can be pulled by progressive movements and it can then support progressive movements in a quite complicated way, but I don't disagree with you. I think that just as, you know, in the US today, there's an election which could see the victory of a party, a significant number of whom appears to wish to reject the foundation stones of a law-based society in my view. And if that were to happen... Who knows what's going to happen? So I... Maybe, this is... What I take from your point is that we can't be complacent. Yeah, and I agree with you. We can't be...I would agree with you. Sorry, I haven't disagreed with you.
[Audience question 6] Thank you, David. That was brilliant. And it just, I guess, follow up on a different point of Sasha's which is to refer to your title and to ask you to elaborate a bit more about the linkages or tensions between equality and inclusion. And because you started off with inclusion and then moved on to equality. And then, I think, summarised and closed again with inclusion. But I want to posit that... Well, I want to ask you to reflect on the ways that equality and inclusion can be intentional. And I'm thinking, for example, we were tasked in clinics in law school or asked by a creative industry sector to get around the Equality Act to promote diversity. Because what they were saying is we want to have... So it's extremely non-diverse sector and we can't discriminate in favour of etc. -Yeah. - We gave them a solution by the way, which is interesting in the context that we're discussing now. Because we said focus on socioeconomic status because that's not a particular characteristic. But now, there are moves to include poverty and socioeconomic status in the Equality Act, which would mean that we can't do that anymore. So, even with regards to your role in the University, I'm just wondering, separate spaces, there are points that inclusion and equality, I think are in contention, I wonder where you think, what can be done about it and or how they can be synergized, I guess?
[David Ruebain] Yeah, I mean this... Thanks, Amir. I think there's lots to be said about that. I mean, I mentioned, I think, equality is a liberal concept really and that's because it's framed in, certainly British law and Western law as being fairness in a competition. And so, the obvious reason why that is not enough is that if you have, say, services for everybody, and serves as just rubbish for everybody, Equality law has little to say about that. Interestingly, human rights jurisprudence does go a bit further because of its concepts of dignity as opposed to equality. And I think there's more that you could do with that there and even are... Most Equality law is symmetric. So it protects...It's designed to afford rights to men and women, white people, and black people and so on. And you could... And in a way, that has a neatness to it but it doesn't really... In one sense, it won't take you very far in terms of the structural oppression which is not equal. However, we have gone further, you know, we have a Public Sector Equality Duty. When I was at the Equality and Human Rights Commission, we put in sections, well, the Labour government because it was them in Parliament. But in my role as Legal Policy Director, we got in there, in Sections 1 and 2 are socio-economic duty, a public sector duty, a bit like the one that applies the protected characteristics. But of course, that received royal assent in April 2010. There was a general election in May 2010. David Cameron came into power and immediately announced that Sections 1 and 2 were never going to be brought into force and they're not. But in Scotland, they've introduced a kind of very... I call it Socio-Economic Light. The logical conclusion is, and I don't think we're going to get this anytime soon, but it's to have equality-focused law on socio-economic disadvantage in employment as well as goods and services in the public sector duty. But in order for that to happen, you'd have to end capitalism or at least late-stage capitalism.
[audience laughs] Probably. Because it was so thoroughly undermined, so much of the precepts of inequality. It's what Richard Williams and Kate Pickett's talked about, that I don't think we're going to get it. So there are, you know, I don't... Amir, I'm not sure if I'm answering your question, but I don't think that there are... The Equality Law is not the answer to everything because these are many other reasons. But inclusion... But it can do a lot and it can do more than we used to think especially when you look at indirect discrimination and the way that that plays out. You can bring in more things. And, you know, the reasonable adjustments to differ which is particular to the Disability Protect Characteristic, which is an asymmetric obligation, has been transformative for disabled people. Public Sector Equality Duty as well. There are lots you can do but I think we need to do more.
[Donald Mcgillivray] Thank you, David. We probably got time for one and possibly two questions if they were reasonably short. Sorry, you're pointing me here at the back. Can we get a mic there?
[Audience question 7] Hi. Can you hear me? Okay. Thank you so much for the great lecture. I am Kanika. I am a PhD student at SPRU, Sussex business school. I come from India and, you know, hearing you speak about the developments the law has made, I realised that there's so much more that we need to do back in India, but I was rather glad to hear about the developments that UK has already made. But since I'm here, I would speak about the UK Law. I have two questions but, you know, I will make it brief. So, the first one, how does the law treat the terms disabled, differently-abled, and specially abled? How are they different? And if there's a definition, then how do you define? And the second question's more personal. So, you know, when I am around a more marginalised person than me, I would constantly have this fear of not saying or doing the wrong thing and being politically correct. So, you know, wanted to hear your perspective on what do you think about living in this constant fear and what can we do to go beyond just living with that fear? [David Ruebain] Oh, great. Thank you. I mean, I'm obviously happy to answer your questions but these are just my views. So other people will certainly have different views. In my own view, the law doesn't really talk about differently abled or specially abled. I think...What's the other thing you said? These are...I haven't come across the latter one, but differently-abled, I have come across. Personally, it's not what I would choose. Maybe I'll say something more general. Language changes all the time. And when I arrived in Sussex, I sort of arrogantly thought, "I've got this. I've written this language guide." So, we can use that. And then the whole of the EDI team, some of them, well, I don't think many of them were here then, but then you can't do that because we'll just get, somebody will be upset with something that we've said in there, right? Actually, because language changes all the time and not everybody agrees on it. I personally don't like ‘differently abled’ personally, and for me, because it feels that we're trying to avoid something really. Let's just think that everything is just different sort of thing without just naming something. But other people do like it, will use it rather. I think... So that's... I suppose, that's not an issue for the law. The law doesn't talk about disabled people or people with disabilities. How we then communicate with each other is you're free to do so. But those bring me to your second point which I think is... And thank you for being open about yourself in that regard. I think everybody is scared and anxious about getting something wrong. And I think the only way we can get through that is through relationships because no matter how many times we can prescribe the words that we use, and there are clearly some egregious words that we shouldn't use. I'm not suggesting that anything goes. Some things which are evidently offensive. But language changes all the time and the only way we will know and understand is by being in relationships with people. So I suppose that's another... What you've asked is an example of what I'm trying to reach for. And also the final thing I'd say is, there isn't anybody who doesn't offend somebody. There just isn't and I certainly do. Not intentionally but I....[audience laughs] have a particular responsibility in my role to try and avoid that but I'm sure I do and I, you know, and I apologise for, I do now apologise if I have done so and, but I don't think it's possible to not make mistakes if you're having, unless, you know, unless you're a robot or something or maybe they'd probably made mistakes from the time. Anyway, I'll stop muttering.
[Donald Mcgillivray] Okay, I think we have to stop the questions there. I'm just gonna say a few words. I'll go over here to do that. Is this supposed to get some lights on here? Otherwise, I'm going to be really struggling. Thank you. David, I don't think you caused any offense. So thank you for doing that.
[audience laughs] Did you say you're an Equality Advisor still to the FA...?
[David Ruebain] Premier League.
[Donald Mcgillivray] Premier League? Okay. I thought you said the FA. I was going to think you’ve got a lot on your plate at the moment for the World Cup but yes,
[David Ruebain] Premier League is enough, by the way. They've got their own problems.
[Donald Mcgillivray] I'm thinking that too. Anyway, it's my wonderful duty to, an honour at this point to be able to give the vote of thanks for David. And on behalf of everyone, I'd like to say thank you David for a hugely insightful and wide-ranging lecture. A lecture which is drawn so adeptly, and with such great clarity from your professional as well as your personal experience and which was only enriched by the answers that you gave to such a wide range of questions that you had at the end. I imagine it must be a very daunting thing to deliver an inaugural lecture, which is why I've never given one.
[audience laughs] So I can only take my hat off to you. And I'm also looking at a couple of other law colleagues here, who may be due to give one as well.
[audience laughs] Haven't waited as long as I have. And as David reminds us, the role of the law is not limited narrowly to, if I may quote you, "to providing a bulwark against oppression, but law also provides and frames a national moral compass." Although, as you quite rightly said, sometimes albeit only within perhaps certain narrow parameters in terms of the extent to which society may pull the law in one way or the law may pull society in another way. But a lot also reflects as well as shapes societal values. And in David's wide-ranging lecture, we were taken to places where different conceptions of equality are to be found as through concepts such as Ubuntu. And then, as David got on to talking about relationality and more communal and collective approaches, and you had cited a real world example of the South African Constitutional Court as an example of that. And I'm sure that Justice Albie Sachs, he was the last person that I was in a similar position to in a big public lecture here. I'm sure he would have had a lot to find in common with what you were talking about in your speech. He's also a Sussex Law alumni. David then addressed the complex issue of enduring tensions such as between, on the one hand, the affirming of identities, and on the other, the importance of identities not being defining. And you spoke very eloquently about the rule of the law in trying to mediate between conflicting ideas of the good life in some way or of identity and community and so on, and in particular, the way that we have to overcome binaries of some kind or "I win, you lose" kind of approaches and to be creative in the way that law seeks to find solutions by bringing people together, rather than setting them in polar opposites. Finally, in conclusion, David you reminded us that law is never the complete answer to social issues like equality and we need to cherish, value and nurture the underlying relationships on which the present and the future in this area will rest. You've certainly given us much to reflect on, David, and those are chance to talk further with David and amongst ourselves over drinks outside. And that will be available until 8pm. And that would be just in the foyer where we started. And if you haven't seen them already in the foyer, there's some further information about the research that we do within law, politics and sociology in relation to EDI, and also some publicity material about our wonderful Masters courses, which produce such brilliant graduates as Henry, who got a name check earlier. So please join me in thanking David for his excellent and incurably human lecture. And in welcoming David as a Professor of Law at Sussex. Thank you.
[END CARD] Thank you for attending. www.sussex.ac.uk
In contrast, it’s important to consider alternative philosophical underpinnings for community cohesion, including the African concept of Ubuntu, which refers to the essential human virtues of compassion and humanity, and the indigenous South American understanding of Buen Vivir, which evokes a sense of the collective.
Fundamentally, I support the centrality of individual relationships including commitment, not only to address ignorance, but more profoundly to advance allyship. Many philosophers, such as Foucault, and writers, from John Donne to Mia Mingus, have explored these issues.
The benefits of inclusion satisfy our inherent nature.”
We should take their lead and reflect on the importance of interdependence – the mutual reliance and flourishing that arises between two or more groups or individuals – and consider it in its fullest, particularly in light of the growing emergence of identity politics in many countries.
So, can the law deliver inclusion? I believe that it is necessary yet insufficient, therefore, the law cannot do it alone.
Professor David Ruebain
Professor David Ruebain is Pro-Vice-Chancellor for Culture, Equality and Inclusion at Sussex; a Visiting Professor of Law at Birkbeck College; and a consultant to Black Thrive Global. Disability Now magazine has named him as one of the 25 Most Influential Disabled People in the UK.