Memorandum by JUSTICE
1. JUSTICE is an independent all-party human
rights and law reform organisation. It is the British section
of the International Commission of Jurists.
2. We have responded to the government consultations
on the setting up of the Commission for Equality and Human Rights
(CEHR), on the Equalities Review and on the Discrimination Law
Review.
3. We are responding to this consultation
because we are concerned that the slow pace of change in relation
to the Discrimination Law Review and the proposed single Equality
Act reflects less a desire to put in place the right provisions
and rather more a lack of commitment and a reluctance to change.
We therefore seek to set out in summary form the reasons why change
is urgently needed and the reforms that are necessary.
EQUALITIES REVIEW
4. JUSTICE welcomed the findings of the
Equalities Review as we consider that equality and anti discrimination
provisions play an important role in countering "chronic
and persistent inequalities" in the UK. Clearly, discrimination
can prevent people's talents and skills being fully utilised for
the benefit of society and the economy.
5. Additionally, if anti-discrimination
legislation is not to fall into disrepute and be dismissed as
mere political correctness or tick box equality, they must achieve
wide acceptance in Civil Society. So, the clear and unambiguous
findings of the Equality Review on the extent of inequality in
the UK need to be widely understood and taken into account.
6. While it does acknowledge that some progress
has been made and we are now a more equal society than "at
any time in living memory" the report's survey of aspects
of the equality landscape presents a very bleak picture. The report
tells us, for instance, that:
— The average net weekly earnings of
Bangladeshi men is half that of white men.
— In 2005, while 42.5% of all pupils
received five or more A*-C grades at GCSE, only nine% of Gypsy/Roma
pupil attained this result.
— The hourly gender pay gap for women
is 17%, but for part time women it is 38%.
— Women's average income in retirement
is only 57% of the average for men.
— Disabled people are 30% more likely
to be out of work compared to non-disabled people.
7. These statistics are a challenge to action
for anyone interested in making a more equal society. The report
makes clear that, contrary to popular belief, the situation for
many groups is not improving or is improving far too slowly. It
estimates, at the current rate of progress, that the time needed
to eradicate critical inequalities severely challenges any complacency
among policy makers and makes urgent action the only possible
response.
8. For instance, at the current rate of
progress the employment penalty will disappear:
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| For mothers with children under 11 | in 2025
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| For disabled people | possibly never
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| For Pakistani and Bangladeshi women | definitely never
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9. At the current rate of change we will ...
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| Elect a representative House of Commons |
in 2080 |
| Close the gender pay gap | in 2085
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| Close the ethnic employment gap | in 2105
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| End the 50+ employment penalty | not in this lifetime
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| Close the disability employment gap | probably never
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Future demographic changes, including increased numbers of
people over 65, disabled people and people from ethnic minorities
or mixed race, will make the challenges even greater.
10. The educational statistics are little better. Educational
attainment gap at Key Stage 2 in English and Maths will be closed:
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| For Bangladeshi pupils | in 2010
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| For Mixed White and Black Caribbean pupils |
in 2014 |
| For Pakistani pupils | in 2017
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| For Black Caribbean pupils | in 2045
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| For Black African pupils | in 2053
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11. JUSTICE considers that for these reasons urgent improvements
to the underlying legal provisions need to be considered.
DISCRIMINATION LAW
REVIEW AND
A SINGLE
EQUALITY BILL
12. Equality is a value of fundamental importance to
a just society. A society based on equality and non-discrimination
needs a single understandable set of legal provisions which will
entrench these concepts. The law should reflect social values
and so serve to strengthen them. But incomprehensible legislation
is counter-productive. It undermines confidence in the rule of
law as a mechanism and will be ignored. So it is important that
equality laws are simple to understand and easy to use. We need
a new Equality Act to bring the main provisions of equality law
together in a clear, straightforward and comprehensible way. The
new law would eliminate inconsistencies and ensure that each type
of discrimination receives the same level of protection. Of course,
the key to this is getting the content of any new Act right. It
must entail common, clear standards that employers and the public
can understand, including consistent definitions of key terms
and common and effective remedies. This would not prevent a single
Equality Act having separate parts to deal with particular problems
of any specific ground of discrimination.
What reforms are needed ?
— Incorporation of a purpose clause.
— Common clear standards that are easy for businesses
and the general public to understand and implement. Consistency
will aid compliance.
— Equality between issues.
— Extension of the public sector duty to promote
equality to all types of discrimination.
— Consistent definitions of key terms.
— Common and effective remedies for each strand
directed at prevention.
The law is too complex
13. The current discrimination laws are notoriously inaccessible
and so complex that they would strain a tax lawyer. The law has
developed in a piecemeal fashion. The discrimination acts of the
1970s have been added to and amended by a range of subsequent
measures. A recent count identified 35 Acts, 52 Statutory Instruments,
13 Codes of Practice, 3 Codes of Guidance and 16 EC Directives
and Recommendations that apply to equality law. This makes it
hard for employers to keep track of their responsibilities—and
even harder for the general public to understand the law.
14. The position has got even worse since 2000, when
a University of Cambridge study concluded:
The statutes are written in a language and style that renders
them largely inaccessible to those whose actions they are intended
to influence. Human resource managers, trade union officials,
officers of public authorities, and those who represent victims
of discrimination find difficulty in picking their way through
it all.
"Some are more equal than others"—equality
law treats people unfairly
15. All this legislation has not worked to ensure equality
of protection. Our equality laws set a very poor example since
they are themselves unequal. They give more rights to some people
than to others.
16. The current law has too many small exceptions that
are different for each type of discrimination. So:
— partnerships of less than six people can still
lawfully discriminate on grounds of nationality—but not
on grounds of race or sex.
— in planning applications, race discrimination
is prohibited—but it is not prohibited in relation to the
other grounds for discrimination.
Definitions are inconsistent
17. Key terms are defined differently according to which
type of discrimination is involved and the remedies victims receive
vary depending on the reason for the discrimination.
— The definition of indirect discrimination on grounds
of ethnic or racial origin is different from that of discrimination
on grounds of nationality.
— The definition of direct discrimination on grounds
of race is wide enough to encompass those who are subjected to
discrimination because of their connection or perceived connection
with race. But a disabled person can only benefit from the discrimination
provisions in respect of their own disability.
18. Not only does this make no sense to people facing
discrimination—it confuses employers and business. The only
people who benefit are lawyers.
The current law is bad for business
19. Business needs a clear and simple regulatory framework.
The law can provide a level playing field in which responsible
employers know that they will not be undercut by those who ignore
their legal obligations. Simplification of equality law would
make it immeasurably easier to implement and manage—bringing
savings on administrative and legal costs. The application of
a clear equality law will enable businesses to maximise their
markets to the mutual benefit of staff, management, shareholders
and consumers.
20. So there is an urgent need to produce a new code
to cover all of the grounds for discrimination, new and old—sex,
race, disability, sexual orientation, religion or belief and age.
Multiple identities
21. Society is changing. There is now greater recognition
of the multiple nature of our identities, the law needs to be
able to encompass multiple discrimination. Multiple, or more precisely,
intersectional discrimination occurs when a person experiences
discrimination on more than one ground and the grounds interact
with each other in such a way that they are completely inseparable.
It currently has no remedy under UK law. This is because UK discrimination
law requires a person wishing to claim discrimination to compare
his or her treatment with someone not of the same sex/race/religion
or belief/sexual orientation/age and the courts have rules that
the comparison can only be with a single characteristic; not with
an undivided combination of characteristics. Please see Appendix
A for further details.
Purpose clause
22. A clear statement of the way in which equality legislation
should be interpreted would assist its application. A modern law
should both reflect current thinking and set new standards—by
changing hearts and minds without the need for litigation. From
today's perspective it is clear that both the Race Relations Act
1976 and the Sex Discrimination Act 1975 have been successful
in doing this. A similar challenge faces an Equality Act. The
title alone is not enough—an Equality Act must be valued
for its universal application.
23. A single Equality Act with the elements that we have
proposed could:
— Prevent unjustifiable discrimination that happens
now and thus improve millions of people's lives;
— Provide equal protection from discrimination to
all sections of the community;
— Help deliver better public services tailored to
individuals' needs;
— Be easier for employers and others to understand
and consequently aid compliance;
— Reduce the number of claims to Employment Tribunals
because the law will require a greater focus on preventing discrimination;
and
— Send a clear message that Britain values diversity
and that everyone living here has the right to be treated fairly.
THE ROLE
OF THE
COMMISSION FOR
EQUALITY AND
HUMAN RIGHTS
24. The Commission for Equality and Human Rights (CEHR)
was set up in recognition of the fact that, in the words of Patricia
Hewitt, when she was Secretary for Trade and Industry:
As individuals, our identities are diverse, complex and multi
layered. People don't see themselves as solely a woman, or black,
or gay and neither should our equality organisations.
25. JUSTICE has always welcomed the setting up of the
CEHR, however, at the time it was proposed we were one of many
organisations, including the existing Commissions, who pointed
out that single equality legislation should precede any single
Equalities Commission. In the government's response to consultation
they observed:
Although the White Paper made no proposals in relation to
the harmonisation of equality legislation or the introduction
of a single equality act, the great majority of respondents highlighted
concerns about the disparate protection provided by the existing
legislative framework.[53]
26. The need for improved, simplified and consistent
legislation in this field prior to the setting up of the CEHR
was echoed in the words of Trevor Phillips in his evidence to
you.
We should have had an equalities review, a discrimination
law review, followed by a new Act, followed by the setting up
of the new institution.
27. The CEHR would be much more effective if it can work
with consistent, modernised legislation.
28. That concern over the lack of unified legislation
continues and JUSTICE considers that this lack is likely to inhibit
the working of the CEHR and to make it harder for businesses to
put in place anti-discrimination measures. We are therefore worried
about the persistent delays in the publication of the Discrimination
Law Review Green Paper. This was first due to be published in
July 2006, it was then delayed so that its publication could be
tied into the publication of the final report of the Equalities
Review which was published in February 2007, then a date in May
was promised. This is not just a concern about the publication
of a report this reflects worries that the construction of a new
equality law fit for the 21st century is no longer a priority.
53
DTI Fairness for All: a New Commission for Equality and Human
Rights, The Government response to consultation, 2004, paragraph
76. Back
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