Q
74Lyn
Brown (West Ham) (Lab): This morning, I pressed on the
issue of the isolated bullied child in a school, and the possibility
that the teacher and ancillary staff colluded in or even instigated the
bullying, whether it be on grounds of religion, belief, sexual
orientation or gender variance. I asked who, in that case, would or
could take legal action on behalf of the child, and I was told that the
Equality and Human Rights Commission could or would do so. First, can I
have your take on that? What do you think? Do you think that that is
adequate? Do you think that the Bill should be strengthened in respect
of enforcement? Should it include provision for representative or class
action? Stephen
Whittle: First, the provision against harassment
really needs to be strengthened for young black kids. Our experience
from doing work for the equalities review and, since then, for the
European Union has been that bullying in school comes not just from
children. There is a significant problem with staff—from
ancillary staff right up to the very senior staff in
schools. What
we feel very strongly is that the power needs to be given for a
children’s solicitor to step in and take a case on behalf of the
child, if need be. Just like in the matter of the ward of court, we are
talking about really serious issues here, in relation to a
child’s future well-being. Our experience is that many parents
do not know how to do that, on the whole. They are too emotionally
involved and they want to protect their children—so strongly
that they protect them from the courts, as well.
We do feel it
needs to be strengthened. The Equality and Human Rights Commission
would be incredibly supportive on this; but it only has limited money
to do these cases. So far in the history of the EHRC there has only
been one trans case
supported.
Mr.
Boswell: On a point of order, Lady Winterton. I should
briefly like to refer to the fact that I omitted the Parliamentary
Secretary, Government Equalities Office, from my list; perhaps I may
append her to it. For this purpose in particular we are extremely
grateful that she is on the Committee, with her expertise and
experience in these complex issues. I think that that will be helpful
to the
Committee.
Q
75Mr.
Mark Harper (Forest of Dean) (Con): A couple of things:
first, on positive action, there are two provisions in the Bill dealing
with that. Clause 152 is on the general issue, with which I have no
particular problem. The question I wanted to ask—and I want to
see which witnesses want to deal with it—is about clause 153,
which is about positive action on recruitment and promotion. The way it
is written in the explanatory note very much portrays it as being used
in a tie-break situation: in a narrow set of cases where the candidates
are equally qualified. On Second Reading it was put very much in that
way. The Bill talks about candidates who are “as qualified
as” each other, which, to my way of reading, is not quite the
same thing.
If there is a
genuine tie-break and two equally qualified candidates meet the
requirements of the job in the same way, using one of the protected
characteristics as a tie-break to widen the diversity of the work force
seems to me acceptable. However, it also seems to me that the
likelihood of that happening very often, and of there being two equally
qualified candidates, is pretty slim. Equally, you cannot have a
general policy. That would clearly be unlawful. I just wanted to get
the take of the witnesses—those who want to comment—on
whether they think the clause will be of wide use, or whether it will
be used in those narrow tie-break situations. The reason I am concerned
is that I do not want it to be used to discriminate against other
groups of people. My experience is that that has a negative
effect—the opposite effect to the one we want to see. I do not
know who wants to pick that up
first. Rob
Berkeley: I would be happy to. I think you are right
that there would not be that many occasions when people would be
equally qualified as somebody else. That is very difficult to prove. I
am not sure whether there would be two people, two candidates, who
would be exactly the same; but I do think it is an important provision
because this clarification, of what positive action is, is really
helpful. There has been in the past a huge amount of confusion, which
has led people to not engage in the more general positive action, or
have much guidance on what decisions they can make, so it is more an
enabling piece in the legislation which will enable people in those
rare cases to make that decision. But it is not, to me, going to be a
kind of revolution in terms of increasing the proportion of
disadvantaged groups that will take up
positions.
Q
76Mr.
Harper: Just to be clear about your view, and the view of
your organisation, is it your view that it is only acceptable to do
that in those limited cases? Or,
if you have got a range of candidates, where there is a spread of
ability, is it acceptable, where one candidate for a job is actually
better than the other, to pick someone who is less good? They are
qualified for the job—it is not that they are not
qualified—but they are not as good as someone else, and it is
purely on the basis of making your work force diverse. Do you think
that that is acceptable, or do you think it is only acceptable in the
narrow, tie-break-type
situation? Rob
Berkeley: In the view of my organisation, we have
been arguing for a long time for affirmative action which would enable
that to happen in time-limited places and with some safeguards around
that. As a next best position clarity is helpful, and I think this
provides some level of clarity.
Q
77Mr.
Harper: Does anyone else want to
answer? Theo
Gavrielides: Yes, I just wanted to support what
Runnymede has just said. I think it is an important clause. I think it
should be strengthened. This is something that we also campaign
for—affirmative action is something that we also supported.
Certain sectors will be using the clause, but I do not think that it
will be used as widely as some people expect. There is also the issue
of aligning domestic legislation with EU
legislation.
Q
78Mr.
Harper: Do either of you want to speak?
Stephen
Whittle: As someone who has interviewed people for
many years for jobs and studentships, how often do we see two people
with exactly the same sex and qualifications? It is so rare. In
relation to trans people, this sort of thing is not going to make any
difference, because they will simply say, “We chose not to do
that on that occasion.” Much better is a sort of positive
action—not positive in a legal sense. Several years ago the
Metropolitan police put up two adverts on the tube that said,
“London Met is recruiting—transgendered and transsexual
people are really welcome”, and they recruited 23 people in the
next six months. That was what made the difference. This piece of
legislation will not make an iota of difference to the trans community,
unless it is framed very differently and put in a different
context.
Q
79Dr.
Evan Harris (Oxford, West and Abingdon) (LD): I want to
ask about the public sector duty, if that is okay with
colleagues—in particular, the controversy over clause 143(1)(b).
I do not think there is any controversy over the first part, which is
the public sector duty to help “eliminate discrimination,
harassment” and so forth, or indeed the part that
says: “foster
good relations between persons who share a relevant protected
characteristic”. But
there is the part that says “advance equality of
opportunity”, where it is controversial in respect of religion.
I want to ask the panel whether they can identify any examples that
would help rectify the inclusion of that duty—a problem that is
based on the characteristics or needs of people who share a religion.
Perhaps they can point to one of the examples in the explanatory notes
on page E106, because I do not see it there, either.
Ben
Summerskill: Our remit is sexual orientation and I
can happily provide you with hard evidence. We would not be seeking a
duty around sexual orientation if we did not have evidence that there
were mischiefs to be
corrected. You probably need to direct that question to the faith and
belief organisations, which I am sure will have established hard
evidence if they want these provisions. It is not really for
us.
Q
80Dr.
Harris: Let me explain why I think it might be for you.
The wording of the Bill implies that it should apply to the needs of
people, for example, who share a religion. People with religious views
often feel that their needs relate to the doctrine of that religion.
For example, they do not want to have a community where there might be
too much gambling for one religion, or gay nightclubs might be around
the place and they could argue that it is not fair on their needs,
which are not to see that sort of thing in their community according to
their strongly held and sincere religious views. Why are not their
needs not to have that “shoved down their throat” being
recognised by the relevant public authority? That has been cited in
some academic papers as one of the concerns that might emerge. Is that
something that you are aware of?
Ben
Summerskill: Yes, I am mindful that these cases have
sometimes been cited in academic papers. I am not sure we have found
cases in the real world where these tensions would arise. Clearly, it
is exactly the same as the answer on harassment. If we were persuaded
that there were cases where they would arise, we might take a different
view. But it is really not our area of competence. As I said, it seems
to me that it is faith organisations that need to provide the evidence
of need for this provision.
Q
81Dr.
Harris: What about the scenario where some religious
organisations are entitled to discriminate under the exemptions when
they are delivering services, as long as it is not mainly commercial?
Even on the grounds of sexual orientation, there is that exemption in
order to avoid upsetting or mocking the views of a significant number
of their followers.
Ben
Summerskill: We are not clear that that is the
case.
Q
82Dr.
Harris: You are not clear that is the case? Let me refer
you to schedule 23. Do you have a copy of the Bill
there? Ben
Summerskill: I have a copy of the Bill, but we are
still not clear that is the
case.
Q
83Dr.
Harris: So, you do not believe there is an
exemption for religious organisations, in providing services, that
would enable them to discriminate on the grounds of sexual orientation?
Is that what you are
saying? Ben
Summerskill: I can only repeat that we are not clear
that is the
case.
Q
84Dr.
Harris: May I read you the relevant section, and then you
can
explain? Ben
Summerskill: That is a question you will have to ask
the Chairman, not
me.
Q
85Dr.
Harris: Paragraph 2 of schedule 23
states: “This
paragraph applies to an organisation the purpose of which
is—” and
then it lists a number of religious organisations. Paragraph 3
says—
The
Chairman: Order. I think that, perhaps, on reflection,
this might be a question to put to the Minister at some stage, so we
should move on. I call John Mason to ask a question on the same
issue.
Q
86John
Mason (Glasgow, East) (SNP): Thank you, Lady Winterton. To
build on some of the things that Evan Harris was saying, there are bits
of the public sector duty in clause 143 that I really like, such as the
part about fostering good relations, which is to be welcomed, but do
you feel that it puts an unfair burden on public authorities to try to
hold together the eight protected characteristics? Will they be forced
to choose between them and somehow create a hierarchy? How will they
resolve conflicts, or will there not be conflicts?
Ben
Summerskill: Let me answer that in practical terms.
We now work with about 500 major employers, who employ about 5 million
people between them, and I think that two thirds of them are public
authorities. The vast majority of those employers support the proposals
in the Bill, and not necessarily for political reasons, with either a
small or capital P, but because they see a simplification and because
they see an opportunity better to deliver and tailor public services
right across the piece. Clearly it is quite proper that you should not
focus on just one area of equality.
I think it is
fair to say that where we have seen the biggest operational successes
in such areas, not just around issues of employment, but around service
delivery—we have done some quite detailed work over five years
with the NHS in Scotland, which is now being mainstreamed right across
the Scottish health service—that success came from encouraging
those organisations to see all their patients as being different. It
did not come from us going in with a series of strategies that related
simply to sexual orientation, or from saying that they should get in
someone who is an expert on race. I think the perception of a huge
number of public bodies—Scottish Enterprise is another we work
with that springs to mind—is that they see the prize of having a
bespoke capacity to deliver public services for everyone as the prize
contained within the public duty right across the board, rather than it
being a duty that cuts in eight different
directions. Rob
Berkeley: With or without the provisions in this
Bill, public authorities will have to deal with these conflicts and
resolve them anyway, so I hope that it gives them a space in which to
do that, and enables them to do so. Given the way in which various
equality organisations have managed to find spaces in which they can
work together, that is not impossible. It takes some work, but it is
not impossible and it can lead to some very positive changes, not just
on particular protected grounds, but right across the piece.
Stephen
Whittle: I was going to add to that. I work with
public sector bodies, and there has been great enthusiasm, particularly
at local authority level, for putting together the public sector duty
obligations from the Equality Act 2006. We plan early work up in the
north and north-west of England, and perhaps it is a stronghold of
equal opportunities historically, but there has been absolute
enthusiasm for that, and some very positive experiences.
Theo
Gavrielides: A similar question was asked when the
Human Rights Act 1998 was introduced. To answer your question fairly,
it will put pressure on public authorities to bring themselves up to
scratch. But that is not a reason to say that the Bill should not be
passed. In fact, it should be a reason to provide support for such
public authorities, whether it is training or guidance, to deliver and
implement the Bill.
You spoke
about public authorities. One of our main concerns is that the duty
does not extend to organisations that will provide public services. I
am talking about the public functions definition in the Bill. The Bill
uses the Human Rights Act as a point of reference to define
“public function”. After five leading cases in the House
of Lords, a private Member’s Bill that was proposed, the
recommendations made by the Joint Committee on Human Rights, and a
clear definition in that Committee’s proposals under the recent
Bill of Rights discussion, we are disappointed to see a reference back
to the Human Rights Act. That means that a large majority of the
services will not be protecting some of the most vulnerable groups in
society. An example is the recent YL case in 2007, which involved an
84-year-old lady in a care home. The court said that under the current
definition of “public function”, that particular care
home, which was a private organisation, was not covered by the Human
Rights Act. As a result, the case was turned down. The case affected
300,000 elders in care homes.
The
population of black and minority ethnic groups in care homes is even
more disproportionately represented. Black and Asian minority elders
sometimes do not have family or friends in this country. They also have
additional needs where there are language barriers, cultural needs or
dietary requirements. If they are not protected by equality
legislation, their rights, equality and dignity will be
breached.
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