House of Commons
|Session 2007 - 08|
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Public Bill Committee Debates
Draft Sex Discrimination (Amendment of Legislation) Regulations 2008
The Committee consisted of the following Members:
Celia Blacklock, Committee Clerk
attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Eighth Delegated Legislation Committee
Thursday 27 March 2008
[Mrs. Joan Humble in the Chair]
Draft Sex Discrimination (Amendment of Legislation) Regulations 2008
That the Committee has considered the draft Sex Discrimination (Amendment of Legislation) Regulations 2008.
It is a pleasure to serve under your chairmanship, Mrs. Humble. I confirm that the provisions of the regulations are compatible with the European convention on human rights.
The United Kingdom has a long and proud tradition of legislating to protect people from discrimination. In 1975, Britain outlawed sex discrimination in employment, in education, in the provision of goods, facilities and services, and in the management of premises. Northern Ireland did the same in 1976. Given that context, the Government welcomes European law catching up with principles long enshrined in our domestic law by extending its existing protection against discrimination in employment-related areas to non-employment areas. We therefore welcome the European Council gender directive, which will be implemented in Great Britain and Northern Ireland by these regulations, ensuring consistency in sex discrimination protection throughout the European Union.
The Governments proposals for implementation of the regulations have been the subject of public consultation in both Britain and Northern Ireland. The consultation in Britain, which took place between 12 June and 4 September last year, was combined with the one on the proposed equality Bill, to allow people to see how the regulations would fit into the wider discrimination law reform landscape. The Northern Ireland consultation, which took place between 30 July and 21 September last year, was on the regulations alone.
Before I go into the content of the regulations and how they extend some of our existing protections and introduce new ones in the fields of goods, facilities, services and premises into our sex discrimination law, I would like to touch briefly on the timing of their implementation in the United Kingdom. Hon. Members will know that the directive, which was published in December 2004, required member states to have implemented the regulations by 21 December 2007. Government policy is to implement European Union directives on time, but on this occasion that was not possible. Let me explain why.
As I said, the regulations, which replace those laid before the House on 28 November last year, amend legislation in both Great Britain and Northern Ireland. That is unusual. Northern Ireland Ministers have competence to legislate on discrimination matters, and
Although the implementation was already running late, the Government considered the most effective means of ensuring that the United Kingdom as a whole could comply with the directive was for regulations implementing it in both Britain and Northern Ireland to be taken forward in Westminster. Northern Ireland Ministers have not objected to that course of action and we have had the great support of their officials in the drafting of the regulations. Legislating in such a fashion is, we believe, the most effective way of putting the additional protections against discrimination in place in Great Britain and Northern Ireland as quickly as possible.
The regulations are being made under the European Communities Act 1972 and amend the protections in the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976, which broadly mirrors the 1975 Act. These amendments ensure that the UK complies with the gender directive, which seeks to achieve harmonisation and consistency in gender equality law throughout Europe.
In the UK, the regulations will introduce some new protections and extend existing ones, particularly on the provision of goods, services, facilities and premises. For the purposes of European law, sex discrimination also included gender reassignment discrimination, about which I shall say more shortly. The most significant changes proposed will introduce a specific prohibition on sex harassment and sexual harassment in the provision of goods, facilities, services and premises. Our legislation currently provides protection from discrimination, but not from harassment. The measures will also introduce protection from discrimination and harassment in relation to goods, facilities, services and premises for people who are intending to undergo, are undergoing or have undergone gender reassignment. We estimate that that will extend protection to about 5,000 people currently excluded from it.
There will be express protection from discrimination in the fields of goods, facilities, services and premises for women on the grounds of their pregnancy and maternity. We currently do not have that explicit protection in that area of our legislation, although many cases are likely to be covered by existing sex discrimination law.
I shall concentrate today on the proposals that were covered in public consultations in Great Britain and Northern Ireland on the implementation of the directive, beginning with harassment. The regulations will make it unlawful for a provider of goods, facilities, services or premises to subject a person who seeks to obtain those goods or use the services, or is supplied with them, to sexual harassment, sex harassment or harassment on the grounds of their gender reassignment.
At this point it might be helpful for me to clarify the terms. Sexual harassment occurs when a person subjects another to unwanted attention of a sexual nature. An example would be a waiter pinching a customers bottom, or a shopkeeper making lewd comments. By contrast, sex harassment occurs when a person generally behaves in an offensive way to another because of their gender. An example would be a pub owner referring to a woman as a bimbo while serving her.
For the purposes of implementing the directive, the regulations will apply to the free-standing definition of harassment already in the 1975 Act and the 1976 order as it applies within the employment sphere. Hon. Members might be aware that a ruling was made by the High Court last year following a judicial review brought by the former Equal Opportunities Commission, which required us to recast the definition of sex harassment. The Sex Discrimination Act 1975 (Amendment) Regulations, which were laid before Parliament on 14 March, will give effect to that judgment, and the new definition of harassment is due to come into effect on 6 April. The new definition will therefore apply to goods, facilities, services and premises as it will to employment and vocational training.
The principle that a persons right not to be subjected to direct discrimination on the grounds of sex includes changing sex or gender reassignments. That was set out in the European Court of Justice in a 1996 employment case. We are clear that we now need to bring protection on those grounds outside the workplace if we are to implement the directive fully. We are therefore extending to the field of goods, facilities and services the existing employment protections in the 1975 Act and the 1976 order for people who undergo, are undergoing, or who have undergone gender reassignment.
I want to make it very clear that the regulations do not impact on the rights of individuals to hold a religious belief, nor do they affect religious worship and observance arising from basic doctrines of faith, as this falls outside the scope of the directive. Where the regulations will have an impact is by making it unlawful for a person to be denied access to a shop, for example, or refused service in a restaurant, or be the subject of abuse by a sales person on the grounds of their gender reassignment. Directives aside, such discrimination has no place in the United Kingdom today.
Through these regulations we shall also explicitly prohibit discrimination against pregnant women who are seeking access to goods, facilities, services, and premises, thereby ending a reliance on case law. In so doing, we have adopted, as far as possible, the approach already established in the employment field. We have included in the regulations a clarificatory provision related to health and safety. This responds specifically to concerns expressed during consultation by the civil aviation sector, that where airlines have policies not to carry late-term pregnant women on flights, these policies may amount to direct pregnancy discrimination.
The clarificatory provision means that an airline would not be discriminating on grounds of pregnancy if it refuses to allow a woman in the late stages of pregnancy to fly, because it is reasonable for the airline to believe that allowing her to fly would create a risk to her health and safety. This health and safety policy is applied in a similar way to people with physical
I turn next to the new protections for women who have recently given birth. The directive does not define maternity, but responses to the consultation overwhelmingly supported our proposal to define maternity by reference to the age of the child so as to provide the greatest legal certainty. There was less agreement on the period for which protection under discrimination law should apply. Respondents views ranged from as little as eight weeks to as much as three years. We have ruled out the higher and lower extremes as difficult to justify, given that we believe the purpose of the provision is to protect the unique relationship between a mother and her newborn child, so the Government have opted for a period of 26 weeks following the birth of the child. In our view 26 weeks meets, but does not go beyond, the requirements of the directive.
I now turn to insurance changes. Currently, the Sex Discrimination Act and Sex Discrimination Order enable the insurance industry to treat men and women differently for the purposes of calculating premiums and benefits, provided that the treatment is reasonable and is supported by reliable, actuarial evidence. We are exercising a derogation from the directive to continue to permit gender-based differences in insurance premiums and benefits, provided that the industry ensures that data relevant to the use of gender as an underwriting factor are compiled, published and updated in line with guidance published by the Treasury. This is a common-sense provision, which ensures fairness.
The differences in treatment between men and women must be proportionate, but in any event costs relating to pregnancy or maternity must not be reflected in differences in premiums and benefits. The Government will defer this provision until 22 December 2008 in order to give the insurance industry sufficient time to prepare for this important change with minimal disruption.
In conclusion, for the purposes of this debate, I have concentrated on areas of most interest to the Committee, but the regulations will introduce other changes: for instance, in prohibiting pregnancy discrimination and shifting the burden of proof from the claimant to the respondent. I am happy to take questions on those issues. By introducing the regulations in the United Kingdom we will increase the legal protection from discrimination for those who wish to access or use goods, facilities and services, where they are provided to the public as set out by the directive. I urge the Committee to support our approach, and I commend the regulations.
Mr. Shailesh Vara (North-West Cambridgeshire) (Con): This is the first time that I have had the privilege and pleasure to serve under your chairmanship, Mrs. Humble.
In general, the Conservatives support the main thrust of the regulations, which in effect put into law much of what is in place already, but in a more codified way. However, I have a number of concerns and questions that I hope the Minister will address. My main question is about Westminster dealing with matters that should have been dealt with by the Northern Ireland Assembly and the process of devolution. I noted her explanation that Westminster is dealing with this Northern Ireland matter owing to a failure of agreement between the First Minister and Deputy First Minister.
This is, nevertheless, a devolved issue, and the Northern Ireland Assembly has competence to deal with it. If the Assembly cannot reach agreement, what provision is there for us to deal with it? I commend the ingenuity of the officials in bringing it to Westminster, but that is not what was originally intended. Under what legislative process or enactment may matters that cannot be agreed on in the devolved Assembly be introduced in Northern Ireland via the back door of Westminster legislation?
Will the Minister be kind enough to explain what that means for the process of devolution? If the Assembly cannot reach agreement on other matters, will they automatically come back to Westminster? Did the Government have discussions with the European Union about addressing that anomaly, or did they simply act unilaterally on the advice of unelected officials? More importantly, will there be a debate on the Floor of the Housebetween elected officialsto ensure that this does not become a regular occurrence and that Westminster does not become a default mechanism when the devolved Assembly cannot reach agreement? Given the significance of the regulations to Northern Ireland, why does the Committee not include a single Member from a Northern Ireland constituency?
More generally, the UK consultation on the regulations ran from 12 June to 4 September last yearthe dates in Northern Ireland were slightly different, although it followed a similar format. Much of that was during the summer holidaysso much for open government. I noted the Ministers comments about harassment, but the former Equal Opportunities Commission did seek judicial review with regard to the definition of harassment and the impact of the regulations on legislation. I would welcome an assurance from the Minister that proper consideration has been given, and that there will be no further conflict or questions raised about the definitionit has already gone to judicial review.
I also want to ask the Minister about the lead-in time for businesses properly to implement the new regulations. I understand that the estimated cost to business for implementing the proposals is £12 million. What efforts have been made to ensure that businesses, particularly small businesses, incur as little cost as is possible, and that they have had proper time to comply effectively with the legislation by the due date?
It is important that Hansard records the contribution made by the European Scrutiny Committees, both in the other place and in the House of Commons. The Committees considered the issue and felt that it was important. They made some helpful suggestions that assisted the Government in their negotiating position.
That said, I repeat that we in the Opposition generally agree with much of what is being proposed. I would, however, welcome the Ministers comments about the issues that I have raised, in particular the matter of Westminster doubling up as a default mechanism for issues that cannot be resolved by the devolved Assembly.
Lynne Featherstone (Hornsey and Wood Green) (LD): It is an honour to serve under your chairmanship, Mrs. Humble.
The Liberal Democrats generally support the implementation of the directives and will support the Government. We regret the delay in the introduction of the regulations; I was grateful for the Ministers explanation, but it seems a jolly long time. There were good intentions in combining the regulations as annexed to the discrimination law review, but I am most concerned about the evidence of the Government consulting with stakeholders. I understand that there were only 92 responses to the consultation, so some of the issues that we will discuss could have benefited from a more genuine consultation. I have not seen a publication of the results of the consultation, so perhaps the Minister could throw some light on that.
I am concerned about the maternity issue, and I would like the Minister to clarify it. When the regulations come into force, it seems that it will be permissible to discriminate in provision of goods and services against a mother if the child is 27 weeks old, but not if it is 25 weeks old. I believe that it is wrong to discriminate against a mother with a young childI understand that the line must be drawn somewhere, but I am not sure that 26 weeks is explicable in terms of discrimination or non-discrimination. I wonder whether choosing to define that by using the definition in employment law was in the spirit of the directive, which I felt was more about humanising what is experienced if someone tries to go to a restaurant with a young child. However, Liberal Democrat Members will support the regulations. They contain far too many imperatives that cannot wait to be got exactly right to do otherwise, and I welcome the fact that we are making progress and addressing implementation.
The additional elements designed to outlaw sex discrimination in goods and services are most welcome. They reflect the liberal and equality values of my party and resonate with society at large. I and, I am sure, my party have always believed in the importance of standing up in particular for small minorities who have significant issues but not the numbers to make them attractive electorally.
In that regard, I want to address the ongoing discrimination against transgender people. I am disappointed that the directive and therefore the regulations persist in medicalising that issue when there are clearly individuals for whom physical gender reassignment is
I wholeheartedly support the new protection against discrimination in respect of transgender people in the provision of goods and services, but I am disappointed that we have not used this opportunity to consult and potentially widen the protection to cover those who define their gender differently, but choose not to have it surgically reassigned. There are many people in between on that spectrum. I trust that when it is time for the single equality Bill, that issue will be grabbed hold of and dealt with in a wider and more understanding fashion.
I want to finish by considering a provision in the regulations that is welcome, except for the fact that it seems to have involved some infighting. Perhaps the Minister will clarify whether infighting was taking place in the heart of Government between pro-business and pro-equality Ministers. I do not know whether that is correct, but it is possibly the reason. Insurance is a massive skeleton in the cupboard when it comes to discrimination in the provision of goods and services. What I call the Sheilas Wheels debate rages on sofas throughout the nation when the advert comes on the television: should insurers be allowed to cherry-pick low-risk and evidently better female drivers?
The directive draws an even-handed compromise as to whether risk should be collectivised and when actuarial difference should attract additional risk premiums. I am not sure that I support the blanket exception, but I appreciate the significant overhaul that would be required of the insurance industry. That perhaps needs to be worked through. At least such discrimination will now have to be fully justified on actuarial data.
I would like the Minister to clarify one matterthe fault may be entirely on my side. When I was looking for the Treasury guidance referred to in the regulations and my office made inquiries, no one had heard of it. Could the Minister point me in the direction of that guidance? That is a minor point, but it would be helpful to have those guidelines.
With the Commission breathing down the Governments neck, it is probably appropriate to get the measure through and the issue dealt with, but I am looking to the longer term. If the Government are, as I believe, serious about dealing with discrimination and want to present a single equality Bill that is potentially worthy of cross-party support, a faster and more rigorous approach to some of the detail would be most welcome.
Mr. Douglas Carswell (Harwich) (Con): I have no principled objection to the extension of equality in this way. I recognise that life can be quite tough for some of the people covered by the regulations. If the regulations help make life easier for them, that is a very good thing. We need to live in a liberal, progressive, free society in which people are allowed to be themselves. If the regulations help achieve that, so much the better. I simply note that the fiat for this instrument comes not
The regulations, like most of our laws, are made not by those who stand for election or those whose names appear on a ballot paper, but by remote officials. No wonder some of our voters rightfully regard Westminster politicians as parasitical. Perhaps next time Members bellyache about the way in which the media treat them over expenses, they should remember that. What is the point of MPs if we are mere puppets on a string?
It is precisely because the driving force for the change under discussion comes from unaccountable officials that I fear what may happen if the proposal has any unintended consequences. It may be that, in our wisdom, we have foreseen all possible unintended consequences and there will be none; on the other hand, there may be such consequences, for example in insurance. The legislation may not achieve the desired effects and need to be tweaked or further amended. I fear that, because the fiat for the change has not come from elected Members, there will not be the responsiveness to those unintended consequences that there should be.
John Bercow (Buckingham) (Con): It is a pleasure to serve under your chairmanship, Mrs. Humble, in my case not as a member of the Committee but as a parliamentary visitor to it.
I express the warmest and most enthusiastic support for the regulations. The Government are doing the right thing. I shall not join my hon. Friend the Member for Harwich in his commentsI do not want to go down that track, although members of the Committee will have heard what he had to say. I simply make the point that equality of treatment between men and women, in terms of access to and supply of goods and services, is a fundamental principle. We are giving full effect to it, courtesy of the European directive, rather belatedly, but it is certainly better late than never.
I listened with interest and respect, as always, to my hon. Friend the Member for North-West Cambridgeshire, who spoke in his usual measured fashion from the Opposition Front Bench and asked a series of perfectly legitimate questions. I am very interested in what the Minister has to say about the Northern Ireland position and her explanation of why the Government have to do what they are doing. My simple observation at this stage would be that, as far as I am concerned, this is essentially a human rights matter. If it is, it must be addressed as a human rights matter on a United Kingdom basis.
I confess that I am not a lawyerI say so to the Committee with some prideand therefore I do not know the legal background to the matter. However, I remember that, on a previous occasion in Committee, when we debated the Civil Partnership Bill, the argument was made that Northern Ireland was different and separate, and that if Northern Irish politicians had a different view and reflected public opinion in expressing that view, that differentalternativeview should prevail. The argument was rejected then, and it seems to me that it should be rejected now.
I do not know why, initially, the devolved Assembly was going to deal with this matterif it was going to deal with itbut if it was going to do so in a way that conflicted with the human rights intentions of the Government, in my view, it was not legitimate for the Assembly so to behave. We are a unitary state and we should operate on that basis. The legislation is a good thing. I am delighted that it is coming, and I look forward to the Ministers summing up of the Governments position.
Barbara Follett: I thank members of the Committee for their contributions, which have been most useful. I thank especially the hon. Member for North-West Cambridgeshire, who asked questions about our position on dealing with legislation for Northern Ireland. The hon. Members for Harwich and for Hornsey and Wood Green also raised the issue, so it is widely held to be a problem. The answer is that, although the devolved Administrations are generally free to decide whether to legislate about any issue in the devolved domain, and are empowered to give effect to EU obligations in their own context, the UK Government are liable for a failure to implement EU obligations, and we decided, with the Northern Ireland authorities and Ministers, on the best way forward. Somebody once said that politics is the art of the possible, although who said it escapes my memory. We are exercising that art at this moment.
Mr. Vara: I note the Ministers comment. Politics in the western world is also democratic and therefore accountable. My question was specifically about the devolution element, which was debated and the public had a say in it. However, in respect of this back-door legislation, what accountability enabled Parliament to have a say in it? It seems to be happening on the hoof. If the measure was not envisaged originally, perhaps the Government should come clean and say, There is a gap here that needs to be addressed, rather than deal with it in the background. I am concerned that deals are being hatched in the background, rather than Parliament having a say.
Barbara Follett: I am sorry that it looks that way to the hon. Gentleman. It is not so. Deals are not being hatched in the background. It is about trying to work out the best, most equitable and democratic way of putting the directive through, and I think that we have succeeded.
John Bercow: The hon. Lady is a Minister; therefore she is making a ministerial speech and speaking in ministerial terms. She is being very measured, as a Minister. I do not knock her for that, but I am trying to get some clarification. Is it the case that senior Northern Irish politicians, who have a genuine objection to the measure, said, We don't want to soil our own hands with it and therefore were not going to touch it, but if you, the UK Government, wish to touch it, we are not pleased about it, but you must do your own dirty work because we are not going to do it for you.? If that is so, so be it, but I should just like to be clear on that point.
Barbara Follett: The hon. Member for Buckingham puts it in his inimitable way. We agreed this approach with the Northern Ireland Office, not with Northern Ireland Ministers, and we dealt with it through the established procedurethe memorandum of understanding. I think that we have dealt with it as democratically and fairly as we can.
People, including myself, get upset about the consultation being held during the summer holidays, but there are only a few windows of opportunity. We had, overall, 4,000 responses to the consultation, only 92 of which dealt specifically with the regulations. We were pleased with the result and felt that we had consulted widely. We certainly paid attention to the consultation process.
On harassment, the hon. Member for North-West Cambridgeshire asked for an assurance that there would be no further challenges to the definition of harassment. I would love to give a definite assurance. We took steps to try to eliminate the chances of that happening by laying regulations on 14 March amending the definition of harassment in the Sex Discrimination Act 1975 to give the effect required by the Court following the judicial review that he mentioned. The new definition will come into force on 6 April and apply equally to employment and goods, facilities, services and premises from that date.
As someone who runs a small business herselfmy husbandsI am aware of business burdens. We are trying to do something that is both fair and fairly simple and straightforward; otherwise money is given to the compliance industry, which none of us want. We sought a proportionate response to implementation. We have complied with our obligations under the directive, while not going beyond them. We have not in any way gold-plated it; we have done what is required, and there are sound reasons for doing so. Discussions on the equality Bill will provide another opportunity for hon. Members to consider those reasons. We have done a full impact assessment on potential business burdens.
I agree with the hon. Gentleman that the European Scrutiny Committee plays a hugely valuable role in this place. I certainly value its work. The history is set out in detail in the explanatory memorandum to the Merits of Statutory Instruments Committee. I refer him to paragraph 4.4, which I will not read out because it would take a long time, but I have it here should he wish me to do so.
Why is there not a Northern Ireland Member on the Committee? That is a good question. By tradition, the Whips cannot say anything at this point, but the decision is taken by Government business managers and I had no role in it.
The hon. Member for Hornsey and Wood Green mentioned the timing of the consultation. As I said in my opening speech, the Government thought that it was important to present the proposals for the implementation of the directive with the discrimination law review. The hon. Member for Harwich talked about
An interesting point on the medicalisation of gender reassignment was raised. We consider that we have complied with our obligations under the directive and drawn on the current definition in the Sex Discrimination Act 1975. As part of the equality Bill, we will reconsider the definition of gender reassignment. I know that we keep promising the introduction of the equality Bill and I assure hon. Members that it is comingit has formed a major part of my work during the past eight months.
I liked the Sheilas Wheels reference. We are continuing with the current position under the Sex Discrimination Act 1975, whereby discrimination in insurance provision is permitted. I am reliably assured by people from the industry and the Treasury that, if that was not the case, premiums all round would be raised. I do not think anybody would welcome that. The regulations will ensure that the reasons for discrimination are more transparent by requiring data to be published. That is necessary, and guidance is available on the Treasury websiteI can forward hon. Members a copy should they wish.
Having listened closely to what has been said, I thank hon. Members who have participated in the debate. The regulations will make a big difference to the lives of a lot of people. Sometimes, when we come to the House on a sunny Thursday morning that we should be spending with our constituents, we forget the effect that we are having in this room and that the dry language that we use will be transformed into a change to peoples lives. The measure will make the lives of about 5,000 people a great deal more comfortable. People will no longer be denied access to basic goods and services on the grounds of sex or gender reassignment or suffer worse treatment than anyone else when they seek such access.
I am confident that the Governments approach strikes the right balance. We comply with our European obligations under the EU gender directivewe played a big part in negotiating the spirit and the letter of thatand we avoid putting unnecessary burdens on business. The regulations bring Great Britain and Northern Ireland into line with the requirements of European law and update the legislation to make it more relevant and more effective in protecting people from discrimination and harassment. I urge hon. Members to support those outcomes.
Question put and agreed to.
That the Committee has considered the draft Sex Discrimination (Amendment of Legislation) Regulations 2008.
Committee rose at twenty minutes to Ten oclock.
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