Select Committee on Education and Skills Written Evidence


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:


For mothers with children under 11
in 2025
For disabled people
possibly never
For Pakistani and Bangladeshi women
definitely never


  9.  At the current rate of change we will ...


Elect a representative House of Commons
in 2080
Close the gender pay gap
in 2085
Close the ethnic employment gap
in 2105
End the 50+ employment penalty
not in this lifetime
Close the disability employment gap
probably never


  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:


For Bangladeshi pupils
in 2010
For Mixed White and Black Caribbean pupils
in 2014
For Pakistani pupils
in 2017
For Black Caribbean pupils
in 2045
For Black African pupils
in 2053


  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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