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Equality: The New Virtue?*

Published online by Cambridge University Press:  04 July 2014

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Israel Law Review , Volume 38 , Issue 3 , Fall 2005 , pp. 5 - 23
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2005

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Footnotes

**

The first woman to become a Lord of Appeal in the Ordinary, a member of the Appellate Committee of the House of Lords, the highest court in the United Kingdom, soon to become the United Kingdom Supreme Court.

References

1 National Provincial Bank v. Ainsworth [1965] AC 1175 is the best example; see also Ross-Smith v. Ross-Smith [1963] AC 280; Galloway v. Galloway [1956] AC 299; Starkowski v. Attorney-General [1954] AC 155.

2 John Lewis & Co v. Tims, [1952] AC 676.

3 Matadeen v. Pointu and Minister of Education and Science [1999] 1 AC 98, per Lord Hoffmann at 109.

4 Royal Schilten-honig v. IBAP [1978] ECR 2037, at 2072.

5 Singh, Rabinder QC, “Equality: the Neglected Virtue?” (2004) EHRLR 141 Google Scholar.

6 Jowell, Jeffrey, “Is Equality a Constitutional Principle?” (1994) 47 CLP Part 2, 1Google Scholar.

7 Kruse v. Johnson [1898] 2 QB 91, at 99.

8 I shall not attempt to make comparisons between English and Israeli law in this area—not only would this be foolhardy but I was told that the Lionel Cohen lectureship was set up to promote and encourage the study of English law in this University. But you will certainly recognise some of the questions that we have faced.

9 [2003] UKHL 11; [2003] ICR 337; [2003] 2 All ER 26.

10 See eg 1975 Act, ss 47 to 49.

11 Savjani v. Inland Revenue Commissioners [1981] QB 458.

12 Farah v. Commissioner of Police of the Metropolis [1998] QB 65.

13 Amin v. Entry Clearance Officer Bombay [1983] 2 AC 818.

14 The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, 1999, Cm 4262.

15 [2004] UKHL 55; [2005] 2 WLR 1; [2005] 1 All ER 527.

16 Race Relations (Immigration and Asylum)(No 2) Authorisation 2001.

17 Nagarajan v. London Regional Transport [2000] 1 AC 501, at 511.

18 Disability Discrimination Act 2004.

19 Equality Bill, session 2005-2006.

20 Loc cit, citing Dworkin, Ronald, “Equality, Democracy and the Constitution” (1990) 28 Alberta L Rev 324 Google Scholar.

21 Pretty v. United Kingdom (2002) 35 EHRR 1, at para 65.

22 I have found ProfessorRaday's, Frances article, “On Equality—Judicial Profiles” (2001) 35 Is.L.R. 380 CrossRefGoogle Scholar particularly illuminating.

23 [2004] UKHL 39; [2004] 1 WLR 2196; [2004] 4 All ER 193.

24 The same approach was taken in the widowers' benefits cases discussed later. Some widowers who had taken their cases to the European Court of Human Rights had received friendly settlements from the government: but this was a historical fact, not a ground of discrimination covered by article 14.

25 R v. Secretary of State of Work and Pensions ex parte Reynolds [2005] UKHL 37.

26 Abdulaziz and others v. United Kingdom (1985) 7 EHRR 471.

27 By the way, it is interesting to ask whether this is an example of discrimination against men or discrimination against women: it is a reflection of the expectation that a wife will go where her husband goes, that the husband's career is more important than the wife's, that a husband can bestow his status on his wife but a wife cannot bestow her status on her husband—if my husband had been made a Law Lord, I would have become Lady Farrand; but while I am Lady Hale, he is not Lord Hale—except to me.

28 [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 All ER 411.

29 Rent Act 1977, sched 1, para 3, and Fitzpatrick v. Stirling Housing Association [2001] 1 AC 27.

30 Rent Act 1977, sched 1, para 2.

31 [2005] UKHL 30; [2005] 1 WLR 1718.

32 [2005] UKHL 29; [2005] 1 WLR 1681.

33 R v. Secretary of State of Work and Pensions ex parte Reynolds, supra n. 25.

34 Thlimmenos v. Greece (2001) 31 EHRR 411.

35 Ghaidan v. Godin-Mendoza, supra n. 28.

36 I would have held it so in the Court of Appeal in Pearce v Governing Body of Mayfield School [2001] EWCA Civ 1347; [2002] ICR 198, had there not been binding authority the other way, but the House of Lords disagreed: see [2003] UKHL 34; [2003] ICR 937.

37 [2004] UKHL 56; [2005] 2 WLR 87.

38 Wilkinson, supra n. 31; Hooper, supra n. 32.

39 Roma, supra n. 15.

40 R v. Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155.

41 R (on the application of SR) v. Nottingham Magistrates' Court [2001] EWHC Admin 802.

42 The majority also decided that the words “living with the deceased tenant as his or her wife or husband” could be interpreted to cover the case. Lord Millett dissented on this point: a wife necessarily connoted a husband and vice versa.

43 Express Agency v. New York (1949) 336 US 106, at 112-3.

44 This has no effect on the validity of acts done under it. The detainees were not released immediately. But the 2001 Act provisions were due to expire unless renewed on 31 March 2005. The Anti-Terrorism Act 2005 substitutes a less draconian regime of ‘control orders’ that can be applied to nationals as well as foreigners. So far it has only been used for the former Belmarsh detainees.

45 Belmarsh, supra n. 37.