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.
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.
John
Wadham: The commission has been thinking about that
precise issue, and trying to resolve what some people might see as a
contradiction between the need for robust debate and freedom of
expression regarding some of those issues, and the issue of harassment.
It
seems to me that there might be some possibility of making a distinction
regarding the extent to which goods, facilities and services harassment
provisions could be extended to sexual orientation and religious belief
in some areas and not in others. You mentioned a captive population,
but the same could be true of other public sector providers, rather
than the private sector, which might be in a different situation. The
commission does not have a fixed position on that, but I hope that we
can continue to discuss it and produce a policy during the
Bill’s progress through this House and the
next.
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. I
also hope that those approaches will be successful. Inevitably, the
approach taken to harmonise in the Bill is a different approach from
the one we have taken so far. That is because of the development of the
equality law in relation to race, gender, disability and others. It has
been to craft measures that work as best as they can
for the group in question, whereas, actually, it is absolutely right for
the Bill to look across the board to say, as far as it is possible to
do so, whether we can ensure that there is one provision—whether
that is in clause 13, regarding direct discrimination—that will
cover all. My colleagues in the disability committee and other
colleagues in the commission more generally want to spend more time
looking at those proposals. We have raised a number of questions, but
those questions are not such that we say the law should therefore
definitely be changed. But we ask the Committee to debate the matter
and for us to provide more detailed submissions as we go through
them. 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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