QC Opinion and Next Steps
Feisty Women is a Dundee-based charity that is addressing the important issue of equality and economic justice for women.
Our founders and Trustees are all aged sixty plus. Like the majority of women our age, we were pioneers. From the 1970s, we joined the labour market in greater numbers than ever before but we also shouldered a disproportionate share of unpaid domestic labour. The results are not good. We are now in worse health and poorer than men the same age. The mythology when we were younger was that we were privileged to ‘have it all’. The reality was that we were ‘doing it all’.
Today, there is a wealth of evidence to show that inequality in the UK for women of all ages is stark. This is not in the interests of the population or the economy.
We have a situation where courts, MPs and policy deciders interpret equalities laws in what appears to be a simplistic way. Their assumption is that equality means treating everyone exactly the same, rather than doing what is fair. We saw this thinking in the recent Judicial Review judgement.
Modern-day theories about the causes of inequality for women based on complicated, ever-shifting ideas about gender, intersectionality and identity are divorced from the reality of women’s lives. These theories, largely incomprehensible to many women because they make no sense, are producing solutions that don’t fit the problem of sex discrimination.
Astonishingly, pregnancy, childbirth and motherhood, the most important causes of financial disadvantage for women, appear to be side-lined by policy deciders. Women’s contribution to the economy and society through child-bearing is not respected or honoured.
Feisty Women spent over a year researching changes to state pension age for women before deciding how to act. We did not want to waste time or money going down routes that were unlikely to produce results. Our reluctant conclusion is that it is too late to challenge pensions legislation directly. The time to do this was in 1993 when Ken Clarke the Conservative MP, first proposed the idea in Parliament.
After careful consideration and expert advice, we rejected the option of a judicial review. A judicial review is not like a criminal trial or a civil case. Even if successful, remedies available to the courts are limited. In particular, Acts of Parliament, known as primary legislation, are determined by the will of the people through a democratic process. The British public voted for the Labour, Conservative and Lib Dem MPs who drove forward the 1995, 2007 and 2011 Pension Acts. The judiciary does not have the power to overturn the democratic will of the people.
Feisty Women also came to the conclusion that there is no real political appetite to reverse changes to SPA for women. WASPI’s achievement in bringing pension injustice to the attention of politicians has been remarkable. No organisation could have done more. Individual MPs have also worked extremely hard to promote the WASPI cause in Parliament.
In reality, however, over a five year period, there has been little progress. With the forthcoming general election, political parties are making all sorts of promises about welfare expenditure. Unfortunately, for those not inclined to support fifties-born women, the judgement from the recent Judicial Review has given a strong justification to do nothing.
Feisty Women believes the true problem facing women of all ages in the UK is equalities legislation that is not fit for purpose. For this reason, Feisty Women’s target is the 2010 Equalities Act. Our contention is that the Department of Work and Pensions exploited Public Service Equality Duty (PSED) to make a false claim that 2011 pension changes were ‘proportionate’ for women. We believe DWP acted in bad faith because women had a reasonable expectation that DWP should fulfil its legal obligations.
DWP has recent form for misleading voters and tax payers. This week, the Advertising Standards Authority (ASA) found that DWP misled the public through a series of articles extolling the virtues of Universal Credit published in the Metro newspaper. These articles were presented as independent reporting. ASA determined that the ‘facts’ given in the articles were not true. This was fake news, commissioned and produced by unelected officials at DWP.
Feisty Women is now firmly in the world of equalities and discrimination against women, and not the pensions fight. Over the last six months, Feisty Women has been working with legal representatives and a QC expert in equalities law to find a way of taking DWP to court for acting in bad faith.
The Opinion discusses the recent JR judgement in detail. While Feisty Women might argue that the conditions surrounding the 2011 Act were different to the 1995 and 2007 Acts and that proper procedure in this particular case was not followed, a judgement has now been made that changes to SPA for women did not discriminate against us unlawfully. Regardless of the strength of our evidence, this means Feisty Women now has no legal basis to advance our arguments about pensions.
The QC acknowledges that the JR did not consider the issue of PSED. He also states that it is the responsibility of the Equalities and Human Rights Commission to monitor and regulate PSED. It is within the remit of EHRC to investigate DWP’s conduct but a difficulty here is that much time has elapsed. Feisty Women intends discussing this with EHRC. We believe there is a discussion to be had about when the act of bad faith actually occurs. Is it a discrete moment in time or the day the new system is first applied to the individual?
Importantly, the QC acknowledges that the courts often think that equal treatment gets rid of inequality when in fact this type of thinking simply perpetuates the inequality that was there in the first place. He writes, ‘PSED and sex discrimination law represent a way of ensuring equal treatment for future acts, but often do not effectively offer a way challenging inequality based on past discrimination. Getting law that does do that is probably going to have to be the task of the legislator, not the judge.’
Feisty Women Accepts the Challenge
Equalities legislation is incompatible with its purpose and it seems there’s very little women can do to make a complaint about discrimination. This must be fixed. Equal pay law has already set a precedent about continuing past discrimination against women as we saw in the case of the Glasgow care workers. It took these women 13 years to win their case. Feisty Women is in this for the long haul. Our next step is to form a coalition of organisations interested in public service litigation to give force to future campaigning work.
Feisty Women would like to thank the generous supporters who have helped fund our legal investigations. We are a small team of volunteers and keep costs to an absolute minimum. To date, our legal work has cost £3,500 – all met by generous donations from supporters.
Feisty Women is a registered Scottish charity accountable to OSCR, the Scottish charity regulator.
We’re committed to adhering to best practice as outlined in the Fundraising Code of Practice. We will never raise expectations falsely or make false promises. We guarantee to operate in line with the values of the Code - to be Legal, Open, Honest and Respectful in all our fundraising.
We’ll be clear about who we are and what we do. We’ll give a clear explanation of how you can make a gift and change or stop a regular donation. We will respect your privacy.
Annual accounts will be published on OSCR’s web site and Trustees will account for Feisty Women’s work at our first public AGM to be held in Dundee on Sat 29 February 2020.