Equality Bill

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Q 61The Solicitor-General: I want to probe the issue of positive action and positive discrimination that Ruth and Caroline have both mentioned and Tim has already explored a bit. One plank of what you are concerned about is that positive action, being new, might look like a weaker version of positive discrimination to the casual observer who has not yet had the benefit of the commission’s guidance. But as I understand it, that is not your main point and I would not think it a good idea to remove disabled people from the positive action provisions because I can imagine that they could be useful.
Is your real point that that adds an extra complexity to the lack of clarity that you perceive in the Bill about the availability of positive discrimination, as we know it, in the old Act? If that is your point—that it is less to do with the problem of the new positive action provisions, and more to do with that might just complicate what you think is not clear enough already—how do you think that it could be clarified so that everybody is satisfied that positive discrimination is just as available as it always was? As you rightly perceive, that is the intention.
Ruth Scott: Our concern is in relation to the wording of clause 13. That is where we feel that the clarity around the asymmetric provision for disabled people is not expressed clearly enough. As Caroline said, that clause is quite confusing and we would like to see it reshaped to make it much more explicit, so that there is a difference of approach in relation to disabled people and that that is backed up in clause 14, which is specific to disability.
Our concern with clause 152 is almost that positive action is unnecessary in relation to disability—if there is clarification and positive discrimination is permitted in relation to disability in any context where that is appropriate. Further, given the lack of clarity in clauses 13 and 14 at the moment, clause 152 may lead to people interpreting the restrictive way in which positive action is allowed to apply to disability. That will therefore lead to people making judgments as to what it is that they can and cannot do in relation to positive action, whereas the asymmetric nature of protection for disabled people ought to allow them to do anything that is justified in terms of achieving the appropriate outcome for that individual.
Caroline Gooding: Just to back you up, the danger is that authorities, employers and service providers may look at clause 152 and think that that same positive action regime and restrictions, which will remain in relation to the other strands, applies across all of the strands equally—
Q 62The Solicitor-General: As it does, it is just that there has got to be an additional, or separate, provision for positive discrimination. Are you saying that we are not declaring that second limb, or are you saying that your preference would be to withdraw the disability strand from the positive action provisions, which looks like not a good thing to do? Would you not still want some additional clarity in the definitions?
Q 63The Solicitor-General: The positive action provisions will apply in very specific situations, will they not? Then you have the wider position that we are all used to under the DDA.
Caroline Gooding: Exactly. If you have the position where there is wide scope for positive discrimination, why do you need the narrow clause that says that it is okay positively to discriminate in specific situations? That is confusing.
Ruth Scott: The most important point is that we need clarity in clauses 13 and 14 so that the asymmetric nature of the disability protection is unchanged from the DDA—that is the main point. Caroline made a good point about positive action, but it might be important to clarify where it is appropriate to take positive action in relation to one group of disabled people rather than another. For example, if one group is particularly under-represented, you might choose to appoint somebody with a mental health condition over somebody with a physical impairment. But Caroline’s point about general positive action is that this is so restrictive that it sends the message, “Is this restricted or isn’t it?” in relation to disabled people. That is what we are concerned about—that there will be confusion in interpretation.
The Chairman: Before I call the next Member to ask a question, I should point out that we conclude our proceedings at 1 o’clock, so there should be time for just one more question.
Q 64John Penrose: So reminded, I want to go back briefly to carers. I was taken by the comment about something that was not necessarily discriminatory, but which was jolly bad treatment of carers—I think that the example was health inequalities and problems with respite care. Obviously, this is not a discrimination Bill—it is an equalities Bill—but is there anything else that you would like to see? Are we missing a trick?
Imelda Redmond: The Bill as it stands does not cover indirect discrimination against carers, and we would like it to. Carers can find it difficult to look after their own health where public services do not provide them with equal access because of their caring responsibilities. Health is the primary issue, but services may also not be provided appropriately for people with disabilities so that the carer can get on with their own life. An example that came to us quite recently was of a young person with severe disabilities who had been refused the surgery that they needed—there is a whole disability discrimination issue there. As her health deteriorated, her mother ended up giving up work, and no consideration was given to the impact that that would have on her and her family. We see a lot of carers, particularly in the health service, who are unable to protect their own health, and that has a knock-on effect on the person they are looking after.
Q 65John Penrose: So broadening discrimination by association through a wider definition of indirect discrimination is the way you want to go?
Imelda Redmond: Yes, we think that would help.
Mike Lindsay: May I make a quick point in relation to that question, and that is to recognise that a significant number of carers in this country are actually children themselves? It is not clear whether enough recognition is given to whether their needs are being met. We know of a number of cases where that has been brought to the attention of local authority services. They have assessed the needs of the adult parent, but not necessarily the needs of the child specifically as a child in need. There are examples where children’s needs should be incorporated and taken fully into account in these provisions.
The Chairman: On behalf of the Committee, I thank all the witnesses for their evidence this morning. Our session has been very informative. Thank you once again for your attendance.
1 pm
The Chairman adjourned the Committee without Question put (Standing Order No. 88).
Adjourned till this day at Four o’clock.
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