Equality Bill

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Q 21Mr. Boswell: Mr. Sadler, if I may, do you have a word about the likely load on tribunals if the Bill is passed? Will it create an excessive work load? Perhaps to save time, I might ask another question. I am familiar with special educational needs legislation, and there is some disparity between what goes through the tribunal route and what goes through the courts. There is a similar and related issue in Scotland. Will you talk to your colleagues and try to ensure that wherever possible those matters hinge reasonably and there is equal access? Finally, there should be at least some opportunity for mediation in cases, without having to force the issue where that is not appropriate.
Kevin Sadler: I am happy to take the first point back.
Mr. Boswell: So you will drop us a line on that?
Kevin Sadler: Yes. On the second point, we have recently introduced judicial mediation in employment tribunals in England and Wales, and it is coming in Scotland as well. Together with existing arrangements with ACAS, it aims to help people to afford a tribunal hearing where it is sensible for them to do so.
Q 22Mr. Boswell: Clearly, it is not your direct area, but I have a question about the awesome business of having to go to a county court. For example, there might be a discrimination issue in further education or in the universities. Do you talk to the Courts Service regarding its approach on that?
Kevin Sadler: Yes. We have a good record in employment tribunals and in training the judiciary on discrimination issues. We are in contact with Her Majesty’s Courts Service in relation to judicial training.
Mr. Boswell: Thank you.
Q 23Dr. Evan Harris (Oxford, West and Abingdon) (LD): I want to ask about harassment. Perhaps we could start with John Wadham and ask whether you think that it is satisfactory for there to be no protection from harassment on the grounds of sexual orientation or religion for captive populations such as school children.
Q 24Dr. Harris: Obviously, I understand the need to preserve space for debate, but if someone is looking for a hotel they can shop around. If they are in school, they are in school and have no way of escaping harassment on the ground of sexual orientation, unless it is so severe that it becomes discrimination. I would be interested in Sarah’s view on that, as it seems peculiar to have the same lack of protection for schoolchildren—who are particularly vulnerable—and users of public services as for users of commercial services, who are adults in a grown-up world.
John Wadham: I would favour that kind of approach. We have evidence in the public domain that relates to bullying and children, and particularly homophobic bullying. Some issues apply directly to schools, which are, as you say, captive populations, and social services and the public sector more generally. That does not apply if someone can choose between Sainsbury’s and another provider, where they are not locked in in the way you are thinking about. That is a direction of travel that the commission needs to think through, and I hope that the Committee will discuss that matter during the passage of the Bill.
Q 25Dr. Harris: I am sure that we will be keen to hear from you when we have a detailed discussion.
Sarah Spencer: I think this is definitely something that needs to be looked at. We are puzzled as to why it should be lawful to harass in schools on grounds of sexual orientation, religious belief and gender reassignment when it is not on grounds of race, disability and gender. Oddly enough, looking at the examples given in the notes on the Bill, it is suggested that a pupil could bring a case if he had suffered harassment on grounds of sexual orientation, which implies that the examples went in and perhaps such matters came out of the Bill at a later stage. We are puzzled and concerned about why the sexual orientation of someone should be exempted.
Q 26Dr. Harris: May I ask John Wadham about the definition of harassment? It has been argued that the current definition of harassment used historically from the origins of racial harassment is quite wide. There has been a disjunctive provision under clause 24 where the harassment either violates B’s dignity, which is hard to define unless you are B, or creates an
“intimidating, hostile, degrading, humiliating or an offensive”
environment. “Offensive” is rather in the ear of the recipient. An environment to some people could easily be offensive. We could argue that humiliation or degradation is never acceptable, and that some people can easily be offended. If we intend to extend protection from harassment, but still seek to protect free speech and debate, is there a case for having a narrower definition of harassment for the more tricky areas that we have just been discussing, assuming that that is allowed within the terms of the directive?
John Wadham: Subject, as you say, to the terms of the directive, it is difficult to see how action that was intimidating, hostile, degrading or humiliating could be justified, but I accept that, in the context of being offensive, some will say that people are entitled to make offensive statements about sexual orientation or particular religions or beliefs. That is what article 10 of the European convention on human rights is about. So if we try to craft a provision to ensure that people are protected from things that are, in fact, damaging and, in the context, discriminatory because they have a discriminatory effect on how people feel that they can take advantage of the service or whatever, that is different from being offensive. Whether this Committee or the other proceedings on the Bill will ensure that there are two separate rules for harassment is a more complex matter.
Q 27Dr. Harris: There are two at the moment.
John Wadham: You are absolutely right. One of the key virtues of the Bill, and why I hope that it will be supported not only by us and parliamentarians but by those outside the House, is its simplicity. I am not saying that that is necessarily a trump card, but the more complex the Bill becomes, the more difficult it will be for us or others to give guidance. I am not saying that it should not be more sophisticated, but we would be very happy to give our views in more detail as the measure continues.
Sarah Spencer: This is also something that we have looked at carefully. Clearly, it is important that the provision does not go too far. We are confident that, not only does it have to be compatible with the European convention on human rights, but because of the terms of clause 24(3) of the Bill in deciding whether the contact has that effect, there is an objective criterion. Not only is it the perception of the victim who feels that that has happened to them, but whether it is reasonable for the conduct to have that effect. We feel that that provides a sufficient qualification and that it will not be used too widely.
Q 28Dr. Harris: It is one factor. I am surprised that you say that it is sufficient. If you are a devout Muslim, you might be offended. It would be reasonable if you were particularly devout to be offended by something that someone else would not find offensive. Objectively, given your devoutness, it is reasonable that you would be offended, but that still does not necessarily solve the problem of certain people being particularly sensitive and someone saying something without knowing that a particular sensitivity is out there. That objective test could be argued not to be sufficient to protect free speech.
Sarah Spencer: In those circumstances, it would still have to be compatible in relation to the freedom of speech provisions under the European convention on human rights. Even if the courts took it only as reasonableness in terms of the victim, rather than the wider definition of reasonableness, you would still have that balance under the Human Rights Act.
Q 29Dr. Harris: So you would just rely on the courts at the end, after hundreds of trials.
John Wadham: The issue is not quite that, though, is it? One of the virtues of the Human Rights Act is precisely that it allows whoever is interpreting, whether it is a school, its lawyers or the courts, to ask that question. In other words, the provisions of article 10 need to be read into the matter, whether or not it is amended. I am not suggesting, therefore, that we should not do our best to make it compatible in the first place, but there is a long-stop—that is, as I said, the virtue of the Act. It protects the freedom of expression in that context, which will exist regardless. If you get the legislation right, and you do not have to rely on that, it is obviously better. That is something I am happy to talk about in more detail, or to make further submissions to get it right. It is important to consider the matter, and it is quite difficult to get it right.
Q 30Dr. Harris: Thank you. Some people worry about relying on European or Strasbourg jurisprudence. But that is not your problem.
John Wadham: That is not my position or the position of the commission.
Q 31The Parliamentary Secretary, Government Equalities Office (Maria Eagle): I want to move on to disability discrimination. My interpretation of the concerns that have been sent to us so far is that there are two major issues about the Bill. The first is that it blurs, in some way, the current asymmetry between disability discrimination and other strands. The other is that the Bill represents some kind of regression from the current position. The Government position is that we are in favour of retaining asymmetry—that is important—and that there is no regression. I know that the commission has put in some evidence about the matter. Mr. Wadham, is there anything you can tell us? Perhaps Sarah also has something to say. What are the precise concerns that you have about regression?
John Wadham: I repeat that our overall impression of the Bill, including provisions relating to disability, is generally 99 per cent. right. The question that we are asking is about the other 1 per cent. We have the one chance now, at least in the foreseeable future, to get it right. Therefore, we want to ensure that there is a proper debate in Committee on some of the issues. In that context, because the words in the Bill are not words that we as lawyers are used to, we must look carefully about what their meanings are. To take the example that we were all surprised about, Malcolm v. Lewisham, the courts may sometimes take a different approach. It is worth it for all of us to spend some time to check whether the provisions in the Bill are exactly right. I do not apologise for not having all the answers, but I should say that if there was an equality guarantee or purpose clause, I understand that Malcolm would not have been decided in the way it was. I hope that we can debate that.
Q 32Maria Eagle: So is it the commission’s position that there is regression as currently drafted, or not? Or are you just not quite sure yet?
John Wadham: The commission’s position is that there should be no regression.
Q 33Maria Eagle: That is the Government’s position.
John Wadham: I am glad to hear that. It does not surprise me. But to take the more general question about whether “on grounds of” as opposed to “because of” is better or worse, I am afraid I am not sure I know the answer to that. I do not know whether I understand the reasons for that process. I think we need to think a bit more carefully about that, and that applies more specifically because of the asymmetry to the disability provisions.
Q 34Maria Eagle: Sarah, do you have anything to say about that?
Sarah Spencer: The main issue that is raised by the disability organisations and our membership is the difference between the public duty on disability and the current wording in the proposed new single equality duty—specifically that it does not make provision for disabled people to be treated potentially more favourably. As I understand it, you do not intend that to be regression. There is a concern that, in practice, it is regression. But as our member, RADAR, is coming to give evidence to the Committee, I want to leave it to them because they can explain it much more clearly than I can.
Q 35John Mason (Glasgow, East) (SNP): On the question of the public sector duty, we are planning to include religion and belief as well as sexual orientation. I think there has been some fear expressed that the authorities are going to choose between the different strands which one they want to promote more than another, and some would be afraid that they would promote religion at the expense of sexual orientation. Others would be afraid that they promote sexual orientation, and religion would be at the bottom of the pile. Do you have concerns about any of that?
John Wadham: I understand why there are concerns. But I think it is important to concentrate on what the clause is about. Clause 143(1)(b), which I think is the issue, is about the advancement of equality of opportunity. It is
“equality of opportunity between persons who share a relevant protected characteristic”,
rather than the religion. So the issue of equality of opportunity is not to promote religions equally; it is to promote equality of opportunity between people who share that belief or non-belief.
As I said earlier, we will be able to help in relation to guidance, and in relation to the enforcement process. I hope that public authorities will ask themselves questions about whether they are advancing equality of opportunity between the persons who have those beliefs or non-beliefs, or shared characteristics in relation to sexual orientation, rather than saying that they have to promote one particular philosophical or religious belief as opposed to another.
Some of the criticisms suggest that there is a duty to promote one religion rather than another, and so I understand why people are concerned. But I am not concerned, particularly because—I would say this, wouldn’t I?—we hope to help the provision by setting out sensible advice for public authorities and those that have to exercise this duty, so that they are clear about what they should and should not do. Drafts of that guidance will be produced and we hope that other people will be able make contributions.
If we get the law right, which I think the Government have in relation to this clause, we can help to make sure that it works in principle and helps to resolve some of the difficult issues that public authorities are currently having to wrestle with. Irrespective of this duty, public authorities need to try to serve all their customers as best they can. They have to resolve some of these things. I think that this is a sensible approach. In my view, it is difficult to see how we can justify a public sector equality duty that does not cover the key protected grounds and somehow says, “It is all too difficult; let’s not bother. Let’s leave two out because then we do not have to resolve them.”
Sarah Spencer: The balance of my answer would be the same. The majority of our member organisations attach a lot of importance to the public duty, including extending it to religion and belief, because of the importance of ensuring equality for people of different religions and beliefs. However, there are organisations in the membership that have a concern that it could be misconstrued, and that public bodies might misinterpret it to mean promoting equality between religions or religious groups. In practice, that could mean that religious groups are given a much greater voice and say in consultation and have more influence than they should. So the matter of concern is implementation. As John said, the statutory code of practice and the issued guidance making it absolutely clear what this is about will be important. It seems important to us to ensure, as John said, that all the protected grounds are covered, because there is clearly evidence of inequality for people in relation to their religion. However, some of our members are concerned about implementation and practice.
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