Q
36John
Mason: I want to make a wider point, too. Ms Spencer, you
are part of an organisation to do with equality and diversity. There is
a lot about equality in the Bill, but is there enough about diversity?
I want a society in which you have a strong Muslim group, a strong this
and a strong that, and in which we are all working together, rather
than ending up with some kind of grey mass. Are you comfortable with
that? Sarah
Spencer: I cannot see anything in the Bill that
interferes with that. This particular provision is intended to ensure
that, where there is evidence of discrimination and inequality
associated with religion or belief, public bodies take that into
account, addressing it in planning their services and employment. It is
not about in any way creating a melting
pot.
Q
37John
Mason: An example is adoption agencies—would it not
be good to have an adoption agency that just deals with Muslims, or one
that deals with Christians? As long as the local authority dealt with
all of them equally, that would be one interpretation of equality, or
are we saying that every adoption agency must be exactly the
same? Sarah
Spencer: Do not forget that there are three limbs to
the duty. First is non-discrimination, so your model there would
provide for discrimination by all these different groups. The third
limb is about promoting good relations, and your model does not seem to
help there either, so I am not sure that that is what we are going to
end up
with. John
Wadham: The Equality and Human Rights Commission is
in favour of diversity, not surprisingly. One of the issues for
me—I speak as someone who does not have religious
belief—is that I do not think that religious organisations and
people’s celebration of and freedom to express their religion is
as well protected as it should be. That is despite article 9 of the
European convention on human
rights. This
is a step forward, because the issue is that although some religions
are more significantly protected and involved—bigger religious
organisations perhaps need less protection—smaller organisations
and smaller groups of religions need to be protected. We need to be
able to celebrate people’s wish to believe in religion. That is
not to say, therefore, that that allows people to discriminate, but it
does mean that as a society we need to take that approach. That is why
the provisions in clause 143 are about taking a step towards that
approach. We can respect and celebrate each and every person’s
religious, non-religious or philosophical approach to life, rather than
saying it is all
grey. However,
I do not think that the next step is to say that, therefore, if people
are providing what are the equivalent of public services they can
discriminate against one group rather than another. There is an issue
about having exceptions in the context of the working of the religion
itself, whether that is about the priests and bishops or about
something else, but that is not the same as the provision of a public
service, which needs to be provided to everyone equally, as far as it
is possible to do
so.
Q
38Lyn
Brown (West Ham) (Lab): Unfortunately, Dr. Evan
Harris was not at our pre-meeting, so he was unaware of the question
that I was going to pursue, but I would like to go back to where he
left off in terms of schools and their captive audience. I would like
to ask you about enforcement around this. Is one of the reasons why
this has been exempted that young children who are being harassed on
grounds of religion, belief, sexual orientation or gender variance
might not find themselves with an able or willing advocate to guide
them through a process that could involve action against an institution
where the teachers and ancillary staff were responsible for, or
complicit in, the harassment that the pupil was experiencing?
John
Wadham: I would divide that into two questions. The
first is to try to avoid and eliminate systemic issues that cannot
always be resolved by individuals taking up such cases. That is why
there would be a virtue in extending the law, so that people can devise
their policies to ensure that the example you gave does not happen. I
would be surprised if people did not already have policies in place
relating to other legislation to ensure that that happens. Obviously,
the Bill could help with that if that direction were taken.
Often, it is
the systemic changes that make the most difference most quickly. People
who take up individual cases can often motivate us all to try to make a
difference in relation to more systemic changes. Under the
circumstances that you have described, it would be difficult for an
individual child to take up such a case, but that is not an argument
for saying that they should not have that right. It is not correct to
say that just because people do not take up their rights, those rights
should be abolished or not given in the first
place.
Q
39Lyn
Brown: May I follow that up? I want to mention an
interesting article that I saw, which is one of the reasons I got
interested in this area. It was in The Independent on Sunday
last July, I think. It mentioned that nearly half those children who
are transgendered had attempted to commit suicide before their 18th
birthday. That suggests that perhaps there is something systemically
wrong with the way in which we allow our children to be treated, and
bullied and harassed in our schools.
I would like
to know whether there are any other data that the Committee could look
at showing evidence within our schools regarding the types of bullying
that children experience, and the impact and effect of that bullying on
their lives. I go back to the matter of enforcement, as it is often
class actions together—people unifying underneath a trade union
movement, for instance, or an interest group—that can form the
law, or allow it to be framed and understood by the wider general
public and different institutions. Given that these are isolated
children in difficult circumstances, who will take the class action for
them and enable our society to understand the damage that such
harassment and bullying can have on individual children’s
lives? John
Wadham: I take the point about the issues of data and
will get back to you about that. For children who are going through a
process of working out their identity, that is a pretty tough thing,
irrespective of whether they are being harassed. Very few people will
understand that.
John
Wadham: The first question that is beyond the Bill is
about how we identify and provide people in those circumstances with
support. They will not identify themselves, so how do we provide them
with support? The next question is about how we can construct systems,
policies and procedures to ensure that the school, other people, staff
and so on, support and protect such people from harassment.
On the
specific issue about class action, the commission is there to enforce
the provisions—I would say that wouldn’t I? It can take
proceedings in its own name to ensure that the law is respected,
whether or not there are any victims. That is obviously something that
Parliament has given us and, if there were sufficient examples of that
and it was not being dealt with, we would take
proceedings.
Lyn
Brown: That was the answer that I was hoping for. Thank
you. Sarah
Spencer: May I add that Stonewall is giving evidence
to you and that it was responsible recently for a rather impressive
survey on bullying on the ground of sexual harassment in schools? It
may be necessary to look at the definition of gender reassignment in
the Bill because it does not appear to cover the young people whom you
are talking about. It covers only people whom you are proposing for the
process of having surgery. It is worth discussing
that.
The
Chairman: That brings us to the end of the allotted time.
On behalf of the Committee, I thank you for your very informative
evidence. It was much
appreciated. 12.3
pm
The
Chairman: I welcome our witnesses. Thank you very much for
your attendance. The Committee will be putting questions to you over
the next 60 minutes or so. We shall begin with Mr. Mark
Harper.
Q
40Mr.
Harper: I want to probe three areas. I shall try to keep
them focused so that I do not overrun my time. I come first to age
discrimination, particularly in respect of clause 190. It is probably
more directed to Help the Aged and Age Concern, although not
necessarily. It seems that the Government have identified a number of
good aspects of age discrimination, such as some of the business
ventures in which Saga is involved. There are some other positive
things. There are some policy initiatives such as bus passes and TV
licences. What they want to do is to keep all the good things and get
rid of, if you like, bad age discrimination. But it seems that they
have not worked out a way of drafting that, which is why there is no
clause in the Bill to define those things properly.
What the
Government have come up with is something that I find unsatisfactory,
which is a clause that gives Ministers lots of powers to pass
regulations, seemingly on a case-by-case basis, when somebody comes up
with a good piece of age discrimination that they want to allow. That
does not seem to be a good way of doing it. That is my first point. Who
wants to tackle that
first? Andrew
Harrop: I represent Age Concern and Help the Aged.
First, I should say that we very much welcome the Bill and the
provisions on age discrimination outside the workplace. However, we
share the concern about clause 190 and its proposed sweeping powers.
The approach that has been taken effectively delays the drafting that
we would ideally like to see happen. The Government have said that they
have not made the policy decisions and they need to legislate. Our
response is that the Bill is a long one, with carry-over. There is no
reason why an amendment could not be tabled during its passage to put
that on to the face of the Bill, rather than having such a sweeping
power.
We know that
there will be a consultation in the summer on age, and there is already
a review being carried out by the Department of Health. It can report
in October, ready for Third Reading, so that you might have some proper
drafting to insert into the Bill. Alternatively, it is important that
draft regulations are made available to parliamentarians so that you
can
properly scrutinise what the provision will actually do in practice. At
the moment, you have no indication of what it
means. Our
general approach on exemptions to age discrimination is much more
relaxed than some observers, because the Bill also includes the power
of objective justification. That means that any service provider can
justify direct age discrimination if they can show it is a
proportionate way of responding to an issue that they face. Clause 190
is belt and braces, and we think that in many respects it would be
overkill to also have case-by-case exemptions, given the general
exemption of objective
justification. In
some instances, such as concessions, there is such public concern about
whether they will carry on when the Bill comes in that we understand
why the Government wish to be completely clear in legislation rather
than have test cases. But we think that those instances should be
limited.
Q
41Mr.
Harper: Does anyone else have a burning desire to tackle
that? No.
We talked a
little about public duties in the previous evidence session, and my
second question is about the disability equality duty. What was the
evidence about the effect on the delivery of public services of the
implementation of the disability equality duty? What lessons might the
Committee take from that when we are thinking about how the general
public equality duties might work? Perhaps you might want to take that
up, Ms
Gooding. Caroline
Gooding: First, may I say that RADAR very much
welcomes the opportunity to give evidence on the Bill? RADAR has
collected evidence directly from our members—we have more than
500 groups around the country and we talk with them extensively. We had
a large and successful public meeting this January on the public sector
duty. Disabled people and disability groups are very attached to the
disability equality duty, and feel that it has helped them in their
day-to-day lives—but not always. There is always a problem of
implementation and enforcement—that is probably the biggest
problem. One of the strongest elements of the disability equality duty
is in the specific duty, which the regulations introduce. That is a
strong requirement that disabled people are involved in the way in
which the equality duty is implemented and how public services are run.
That has been tremendously important.
What has been
extremely important for us is the very clear indication that, in
relation to disability equality, the duty may require different
treatment in order to deliver appropriate services. I formerly worked
for the Disability Rights Commission and I was in charge of
implementing this aspect of the law. When we consulted on our statutory
code, it was amazing. Public authorities came to us and said,
“What are you talking about, ‘more favourable
treatment’? That is not what the law requires. This is going
above and beyond what is required.” That very clear statement of
what was required, on the face of the Act, made a huge difference. We
are very concerned, as I think some of the previous speakers noted,
that that statement is not adequately reproduced in the present Bill.
In particular, there is not a sufficient emphasis of the
distinctiveness of disability equality and the extent to which that
different treatment is at the heart of disability equality in a way
that it simply is not in relation to other grounds.
Ruth
Scott: I would simply add that within the current
drafting of the public sector duty, it has effectively shifted the
requirement for more favourable treatment to become a discretionary
decision on behalf of the duty holder, and that is the area that really
concerns us. It must be very clear on the face of the Bill that that is
something that public sector authorities “must do” where
it is appropriate to delivering equal outcomes for disabled people, as
opposed to “can choose to
do”.
Q
42Mr.
Harper: Do you agree that, in terms of the specific
requirements that are laid down under the duties, the one about
involving people in service delivery has been one of the very important
things, because at the moment we do not have the detail about what
those specific factors will be. Probably one of the things that we will
discuss in Committee is the extent to which Ministers bring full draft
proposals, which we can then consider to see what they are thinking of.
Would you agree with that?
Ruth
Scott: Yes, I would. As Caroline says, the importance
of involvement of disabled people in developing disability equality
schemes and developing the kind of activities that disabled people
think are important and think will make a difference has been a
fundamental aspect of the relative success of the disability equality
duty to date. We would certainly like to see that replicated.
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