The effectiveness of the EU race equality directive at national level. A comparative study of British and Spanish legislation and policies
thesisposted on 29.06.2015, 12:03 by Sara Benedi Lahuerta
The EU Race Equality Directive (RED) was adopted in 2000 to foster the development of a basic legal framework to address racism and, more generally, to put into effect the principle of equal treatment at national level. However, there are some concerns that the effects of the RED have not been as far-reaching as expected. Through a comparative study between Britain and Spain, this thesis analyses whether the RED has triggered effective legislation and policies in these jurisdictions, and which factors and actors may be relevant to improve the effectiveness of racial equality legislation and policies. Initially, the thesis acknowledges that the RED’s potential to trigger effective regulatory strategies at national level is constrained by its underlying enforcement model, based mainly on individual litigation. Building upon the theory of the Social Working of Law, the concept of effectiveness is defined as the combination of ‘ex-ante effectiveness’, which contributes to preventing discrimination, and ‘ex-post effectiveness’, which minimises the negative effects that discrimination has on victims, once it has occured. This distinction is used to frame the comparative analysis, which is conducted in three building blocks. Firstly, it is argued that formal adjudication has intrinsic limitations because victims bear the burden to initiate legal proceedings but, at the same time, the system deters them from doing so. Secondly, it is submitted that a diverse network of advice-providers (ie equality bodies, trade unions and NGOs) and an appropriate use of Alternative Dispute Resolution mechanisms can contribute to improving ex-post effectiveness. Finally, this thesis also recognises the importance that employers’ policies can have in preventing discrimination, such as those derived from positive duties, collective bargaining and voluntary initiatives. However, the thesis also concedes that the effectiveness of employers’ policies largely depends on the regulatory framework, social awareness about racial discrimination and workforce participation.