The structure of racism and the mould of common law

16 Jun 2023
15:00 UK time
Shreya Atrey
Littlegate House, Suite 1 (buzzer 1), 16-17 St Ebbe's Street OX1 1PT
Uehiro Practical Ethics and Law Lectures
Members of the University only
Not required
This talk explores the reception of claims of racial discrimination at common law. It takes off from the perspective that, if racial discrimination is only partially addressed in equality law, where else can we locate claims of racial discrimination? The talk thus bypasses the statutory guarantees under the Equality Act 2010 and moves towards the broader realm of common law. It traces the lineage of cases involving race in judicial review cases including, relatedly, those under the Human Rights Act 1998 and shows that even though, as the Supreme Court has now confirmed in its 2018 Gallaher decision, that there is no common law principle of equality, there appears to be a clear prohibition of racial discrimination at common law. This can be discerned as a principle cutting across the independent grounds of review, especially the grounds of reasonableness and proportionality. Further, because of the nature of judicial review cases where the state is the respondent and the matters concern questions of general importance, this principle seems to emerge in the type of cases best understood as cases of structural discrimination. The talk hopes to show the radical possibility of addressing structural discrimination at common law, while addressing the limitations which yet exist in claiming this possibility in fact.