Unintended consequences of discrimination legislation

It is a general rule that legislation often has the opposite effect to that intended, and that government action usually hurts most those that it is intended to help. We have a beautiful example reported in The Times today. One consequence of recent legislation to outlaw age-discrimination, is that Saga, provider of holidays tailored to the over-50s, is to be forced to open its holidays to all ages. If a group of 18-30-year-olds wish to book a Saga holiday and behave as they would on a Club 18-30 holiday, Saga are not allowed to prevent them. The Government may just have enabled granny-baiting as the latest holiday entertainment for yobs.

A spokesman for Saga said "We fear the unintended consequences of such legislation might be to subvert our cruise and holiday business, and our financial services business, whilst causing great collateral damage to our brand". So it's to be blamed on that favourite of government the world over - the unintended consequences of well-intentioned legislation. Except it's not unintended, is it? Most "unintended" consequences were entirely predictable. They weren't "unintended" at all. They were ignored. Let's stop using this euphemism that lets legislators off the hook time and time again. These are ignored consequences, or perverse incentives. And legislators who proceed with legislation despite the obvious perverse consequences are not well-intentioned, they are callous or incompetent - probably both.

Saga are seeking exemption from the legislation and the Department for Communities and Local Government, under whose remit the discrimination legislation falls, is said to be minded to implement a "common sense" approach. It is unlikely that the DCLG would recognise a common sense approach if it were spelled out to them slowly in words of one syllable. Exemption for Saga is not a common sense approach. This is not a small glitch in otherwise exemplary legislation. This is a specific example of a broader problem with discrimination legislation. What about all the other instances where people are to be prevented by this legislation from determining freely with whom they wish to associate?

There is only one common sense approach, and that is to scrap anti-discrimination legislation. It is not that it is not reprehensible if a taxi-driver refuses to pick up a passenger of a different ethnicity, or if someone does not get promoted because they are a woman, or if an employer does not grant an interview to a candidate they regard as "over the hill". But you cannot legislate for people's bigotry. It might be illegitimate for a taxi-driver to refuse to pick someone up on the grounds of race, but what about if it is the taxi-driver's judgment that the passenger is drunk or potentially violent or abusive? It is not hard for the bigot to dress up their bias in excuses that circumvent the law. To prevent, in the name of anti-discrimination legislation, taxi-drivers from applying their judgment about which passengers to carry is an unwarranted intrusion into people's freedom of choice and action, however open to abuse that freedom may be.

That is even more the case for employment, where demonstrating that someone was turned down for a job or promotion or pay-rise because of their gender, colour, religion, disability or any other reason can be very difficult. The only tool is statistics, and to use that means appointment by quota. The real world is never so conveniently conformant to the average. Quotas inevitably mean that you do not remove discrimination, you simply change the victims.

It may seem weak, but the least-bad option is to abandon attempts to legislate against discriminatory behaviour, and rely instead on the fact that organisations that, for reasons of bias, do not promote the best candidates are inflicting on themselves a competitive disadvantage, and will lose out in the long-run to those organisations that promote purely on ability.