Palliation or protection: How should the right to equality inform the government’s response to Covid-19?

Abstract

This article examines what role equality law can play in addressing the inequalities created and exacerbated by the British government’s response to the Covid-19 pandemic. We argue that while there is great potential in existing legislation, there is a need for both policy-makers and courts to apply a more searching and nuanced understanding of the right to equality if this potential is to be realised. We begin by examining how the burdens of confronting this pandemic as a society fall more heavily on those already at the bottom end of the scale of inequality. We then ask whether and to what extent the current legal structures protecting the right to equality can be mobilised to redress such inequalities, paying particular attention to the Public Sector Equality Duty under the Equality Act 2010 and on the Human Rights Act 1998. Finally, we argue that, to fulfil the requirements of both these legal duties, the courts should subject policies and practices to close scrutiny under the four-dimensional approach. When making and operationalising policies around Covid-19, substantive equality requires account to be taken simultaneously of the four dimensions of inequality to the greatest extent possible.