Equality Bill

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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.
Lyn Brown: Indeed.
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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