House of Commons - Communities and Local Government Committee

Select Committee on Communities and Local Government Committee Sixth Report

3 SINGLE EQUALITY ACT

31. The case for a Single Equality Act has repeatedly been made by equality organisations, including the CRE and the EOC. In 2000 the Independent Review of the Enforcement of UK Anti-Discrimination Legislation was published. It detailed the case for reforming the existing equalities legislative framework and the possible content of a Single Equality Act.[62] A Single Equality Bill was introduced by Lord Lester and approved in the House of Lords in 2003 but, unsupported by the Government, fell in the House of Commons.[63] The Government pledged in its 2005 manifesto to introduce its own Single Equality Bill during the lifetime of the current Parliament.[64]

32. In June 2007 the Government set out detailed proposals for a Single Equality Act in A Framework for Fairness, a consultation exercise developed as a result of the Discrimination Law Review. The grounds it puts forward for changing the law are threefold: simplification, greater effectiveness and modernisation.[65] Our evidence demonstrated extensive and widespread although not unanimous support for a Single Equality Act. The CBI, for instance, argued that "a convincing case for a major reform of Equality legislation has not been made".[66] It said that such an Act could be a "damaging distraction" with an "excessive emphasis on bureaucratic compliance".[67]

SIMPLICITY

33. The Equalities Review found that many see existing equalities legislation "as overly complicated and difficult to navigate".[68] Equalities legislation was first enacted over 40 years ago and has since been extended piecemeal. The law is set out in nine Acts, four European Directives and a number of other regulations, orders and codes of guidance.[69]This accumulation has resulted in a large and complex body of law which often requires great expertise to operate and interpret. This places greater burdens on employers and tribunals and can lead to protracted and costly litigation. The complexity of the law also makes it difficult for individuals to gain redress and equality organisations, such as the EOC, have argued that simplification will ensure better access to justice for individuals.[70]The Government agrees that the scale and complexity of equality legislation provides a "good case for bringing the law together in one place".[71]

34. Legislation protects people from discrimination on a number of grounds. Yet, for those who belong to more than one protected group—for instance, disabled people who also belong to an ethnic minority, it may be hard to determine which of their protected characteristics is driving any discriminatory behaviour. The Fawcett Society argues that current legislation is failing individuals who experience discrimination on multiple grounds and, far from helping, fragmentation is a "barrier to justice for many claimants".[72] For example, an Asian woman working part-time who experiences less favourable treatment in the workplace has to rely on a number of different regulations and statutes for protection and any claim of discrimination would need to specify which treatment related to her sex and which to her race.[73] A Single Equality Act provides the opportunity to protect against discrimination on multiple grounds in a more coherent manner. This is, indeed, one of the principles behind the formation of the CEHR. The Government states that it does not have any evidence to demonstrate that in practice people are losing, or failing to bring cases, because they involve more than one protected ground. It is however consulting on whether there is a need for multiple discrimination cases to be allowed.[74] The Government's hesitancy towards permitting combined multiple discrimination claims rests upon the additional complexity this might add to any legislation and the consequent additional burden it would place on employers. These are not insignificant concerns but we urge the Government to recognise the inherent difficulty in amassing evidence of actions that have not been taken.

CONSISTENCY

35. Current equalities legislation provides varying degrees of protection for different groups. For example:

discrimination in the provision of goods, facilities and services is unlawful on the grounds of race, disability, sex, religion or belief and sexual orientation, but not age, and

duties placed on public bodies to eliminate discrimination and promote equality of opportunity exist in respect of race, sex and disability, but not age, religion or belief, sexual orientation or transgender status.

36. A number of key terms are defined differently in different Acts, and potential remedies vary depending on the reason for the discrimination. For example, under the Sex Discrimination Act 1975, a hypothetical comparator can be used as the basis for a tribunal claim but under the Equal Pay Act 1970, an actual comparator¯someone of the other sex who is treated more favourably¯is needed.[75] The Fawcett Society argues that this requirement can be a real obstacle for women working in gender-segregated workplaces where there may be no male comparators.[76] The degree of protection also varies depending on where the discrimination takes place: within the public or private sector, within employment or in accessing services, in contractual and non-contractual terms and whether in the home or public arenas.

37. The PCS argued that the CEHR cannot be fully effective without harmonisation of equalities legislation as current disparities "create a hierarchy of rights, sow confusion amongst stakeholders and [are] a potential source of division".[77] We asked Trevor Phillips whether he believed a Single Equality Act was essential for the Commission. He replied: "yes, without question".[78] He believed it likely that without simplification, the Commission would not have the capacity to manage "dealing with the requirements of different pieces of legislation, never mind the new gloss that the Human Rights Act brings to the whole situation".[79]

EFFECTIVENESS

38. Equality legislation in the UK has developed out of a philosophical approach to supporting individuals, one which provides "a remedy for individuals who have been discriminated against".[80] Legislation, however, is equally important as a preventative tool and a vehicle for providing standards for fair treatment.[81] As the Government suggests, revising equalities law would also provide an opportunity to tackle through legislation systemic discrimination. Measures to achieve this might include placing a positive duty upon private sector employers to promote equality and to eradicate discrimination within their organisations.[82]

The process leading to a Single Equality Act

39. The Government launched the DLR in February 2005. The results were originally expected to be published in mid-2006 but have been subject to repeated postponement.[83]On 12 June 2007 the DLR was finally published, a year later than first planned. We have already referred to the additional challenges which the CEHR faces as a result of the consequent absence of single equality legislation at the point at which it comes into operation. Justice was not the only organisation to suggest that the delay indicates "a lack of commitment and a reluctance to change" on the part of Government and to worry that it may also imply that equality legislation is no longer a priority.[84]

40. The Minister reiterated the Government's commitment to introducing a Single Equality Bill within the lifetime of this Parliament, though she noted that the feasibility of legislation actually getting on the statute books depended on the length of the remaining Parliament.[85] Trevor Phillips stated that he believed that "Ministers would like to see something in statute before 2009".[86] The option of introducing a draft bill to enable pre-legislative scrutiny is being considered but the Minister told us that there were "tensions" within Government on the topic.[87] The DRC called for a draft bill to be laid to enable a greater degree of parliamentary scrutiny.[88] Either way, "the timetable is tight" if the current Parliament is to enact legislation within its expected lifetime.[89] A draft bill would enable wider public and greater parliamentary scrutiny but whichever legislative route is chosen, it is imperative that the Government acts swiftly to secure effective legislation for individuals and organisations and to enable the CEHR to discharge its functions efficiently. Any further delay would be regrettable.

41. A Single Equality Act to harmonise and simplify equality legislation and to address inconsistencies in the current legislative framework is essential. Beyond the moral imperative for Government to protect its citizens from discrimination there are also economic benefits to be gained from legislation that better supports utilising the talents of all people to the full. Without a Single Equality Act it will be much harder for the CEHR to fulfil its remit. We note with regret that the Government's recently published draft legislative programme for the next parliamentary session does not include an equalities bill. We recommend that the Government give greater priority to its development than it has to date and introduce or publish a bill early in the next parliamentary session.

Single Equality Bill content

LEVELLING UP

42. Protections against discrimination in employment exist for all six equality strands—age, disability, race, religion or belief, sex and sexual orientation. Protection against discrimination in the supply of goods, facilities and services, premises, education in schools, and other public functions does not exist for all groups. There is currently no legal protection against age discrimination in these areas. The Government is consulting on whether to legislate to extend protections on the grounds of age in these areas.[90]

43. Help the Aged and Age Concern argued strongly in favour of extension. The former told us that older people face extensive discrimination yet have little means of redress. Its research shows that 73 per cent of people agreed that older people face discrimination in their daily lives.[91] Age Concern argued that older people are particularly discriminated against in the provision of social and health care. There is, for example, an explicit age criterion governing access to mental health services.[92] Similarly funding allocations to support older people within social care are less generous than for other age groups.[93]

44. Trevor Phillips supported in principle the introduction of measures to prohibit "unjustifiable discrimination on the grounds of age, whether that is so with youth or older people" although he added that it was a complicated area.[94] The Government acknowledges that any legislation should avoid "the unintended consequences of prohibiting positive benefits for either younger or older people, such as youth clubs, or clubs for older people, holidays catering for people of particular ages, or concessions and discounts which help younger or older people".[95] Its consultation requests evidence on how any unintended consequences and disproportionate burdens arising from possible legislation to prohibit age discrimination in this area can be avoided and what specific exemptions are needed.[96] We welcome the Government's consultation on the possible inclusion of measures within a Single Equality Bill to prohibit age discrimination in the provision of goods, facilities and services. If such legislation is introduced it is important that appropriate safeguards are included to avoid criminalising positive age-related benefits, such as the provision of discounted bus passes for older people.

INTEGRATED PUBLIC SECTOR DUTY

45. Currently three separate duties are in place requiring public bodies to promote equality for race, gender and disability, but not for other equality strands. A Single Equality Bill would provide an opportunity to introduce an integrated public sector duty to eliminate discrimination and promote equality across all strands. The Equalities Review made a strong case for such integration.[97] All three existing commissions also support an integrated public sector duty covering all equality strands.[98]They argue that a single duty does not necessarily mean that each strand needs to be treated in the same way if a flexible approach is taken to achieving strategic outcomes.[99] Equality groups representing those in equality strands not covered by existing duties are particularly in favour of an extension to all groups. Age Concern for instance emphasised that an integrated public duty which covered age would benefit older people by requiring public authorities to 'age-proof' their activities and functions.[100] In Northern Ireland there is already a duty placed on public authorities to promote equality across a range of groups.[101]

46. The British Humanist Association however voiced concerns over the operation of an integrated public sector duty covering religion or belief. It said "we do not see religion or belief as a characteristic that can be meaningfully treated as analogous to race or gender".[102] The Minister however recognised that "equality does not mean treating everybody the same" and pointed out that it would be necessary to think through the practical implications before imposing a duty to promote equality between people of different religions or beliefs.[103]

47. The Government has proposed replacing the existing separate race, disability and gender equality duties with a single duty covering these three groups. It is also consulting on the further option of extending the duty to cover all equality strands.[104] We support the Government's proposal to introduce an integrated public sector duty, promoting equality across the three existing strands. In the longer term we believe that there would be merit in extending this duty to cover all equality strands.

48. According to the Equalities Review any duty and subsequent codes of practice or guidance, should "focus on outcomes and not process".[105]This would reduce the need for detailed reporting on processes and ensure a clear understanding that outcomes should be the first priority. The CBI is concerned about the implications of a duty for businesses that are delivering a public service on behalf of a public authority. It believes that a "flexible" duty would be beneficial, allow for localised approaches, and be less burdensome for business, small and medium-sized enterprises in particular.[106] It argues that the way in which the current duties have been implemented has imposed too many reporting requirements on business, such as requirements to report on recruitment targets or carry out audits.[107] The Government's proposals reflect this focus on outcomes.[108] It argues that secondary legislation would still be needed to indicate how public authorities should respond but, in contrast to the current duties, it would not be prescriptive.[109] Some concerns exist on whether the Government's proposals as set out in the DLR would weaken the law as there could be less detailed reporting requirements. The Government is consulting on new approaches and specific duties.[110] We agree with the Government that any new duty and subsequent guidance should focus on achieving equality outcomes rather than specifying detailed reporting requirements.

49. The public sector procures £125 billion worth of goods and services annually.[111] The current public sector duties are applicable to all functions of public authorities, including procurement. Nevertheless the Equalities Review recommended "a specific requirement for public bodies to use procurement as a tool for achieving greater equality".[112] This might be achieved, for instance, by ensuring tendering processes are inclusive rather than restrictive or by giving greater consideration to the equalities aspects of employment practices in private sector contractors and their supply chains. It argued that despite some good practice, such as that demonstrated by the Greater London Authority, public bodies have not used the duties extensively and that although there is scope within the existing legislation for doing more, "little clarity" exists amongst procurement and commissioning professionals about what can or should be done.[113] The CBI reported that some public authorities adopt a "lowest cost mentality" when awarding contracts, regardless of equalities criteria but argued that procurement could become an "effective lever for equality if it encouraged public authorities to achieve better outcomes for users".[114]

50. The Government's view is that an explicit requirement surrounding procurement in a duty would not be helpful. It believes it would be unnecessary given that legislation already covers procurement and views this approach as inconsistent with the focus on outcomes over process.[115]

51. Nevertheless, the Government has recognised the need for greater clarity on the use of procurement to promote equality and is therefore consulting on what guidance should be issued.[116] The CRE stated that "statutory guidance as opposed to the current non-statutory guidance" would be helpful, as it would provide greater consistency in the application of equality criteria in the procurement process which would in turn help to make the requirements of public authorities clearer to business.[117] The EOC has called for Government procurement guidance to refer explicitly to employment practices in respect of ethnic minority women, given the large scale of the employment and pay gaps they experience.[118] We support the Government's proposal to issue further guidance to public authorities to encourage the use of procurement as a tool for promoting equality. This procurement guidance should encourage public authorities to make clear to businesses the relevant weighting given to equality criteria.

POSITIVE ACTION

52. The Government draws a distinction between positive discrimination, which is illegal under UK law, and positive action which is legal: "Positive action means offering targeted assistance to people, so that they can take full and equal advantage of particular opportunities. Positive discrimination means explicitly treating people more favourably on the grounds of race, sex etc […] irrespective of merit."[119] The Equalities Review found that the current law was inflexible in enabling positive action: organisations that wished to be proactive in making opportunities available to employees and clients were found to be often constrained by the law.[120] The DLR contains proposals for further positive measures to extend the ability of employers to promote equality.[121] Trevor Phillips agreed that greater flexibility for employers to take positive action would be desirable but stressed that he was against positive discrimination.[122] The CBI has voiced concerns over any general extension of positive action on the grounds that there may be a risk of "considerable burdens" on employers, but has stated that there "may be some benefits" of a possible extension if it provides greater clarity for employers.[123]