Equality Bill

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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.
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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