Q
87John
Mason: On that point, may I ask you this? We also believe
in diversity, as well as equality, and trying to keep the two together.
Is it only individuals who can be diverse, or do you accept that care
homes may be diverse too, and you can have different kinds of care
homes, and people can choose which one to go
to? Theo
Gavrielides: Of course they can be diverse. The Bill
tries to encourage a mainstream culture of diversity and rights, not
just in public authorities, but in society more generally. My point was
slightly different—it was about the scope of the Bill, and
ensuring that public authorities do not contract out public services in
a way that enables them to avoid their equality obligations under the
Bill. We have evidence to suggest that the BME, the black and Asian
minority ethnic groups in this country, and black boys and girls in
schools, in care and in academies, are hardly represented. We are
concerned that those services will not be covered by the Bill, which,
in the first place, was about tackling the persistent inequalities in
society.
The
Solicitor-General (Vera Baird): The problem that Theo is
pointing to was corrected in the health Bill. The gap that you just
referred to, rising from the cases of Heather v. Leonard
Cheshire and YL, was filled. But I take your point about public
functions, which was unexpectedly interpreted narrowly by the court. Of
course, we are not entirely reliant on public functions. There is also
a list of public authorities in the Bill that will be covered by it,
and there will be additions to the list as time goes on. As you know,
there is now a duty on public procurers to reflect the public sector
duty in the way in which they procure goods and services from the
private sector. That is in the Bill. I am not suggesting that we have
perfected it, but almost all of the gap you perceive has been filled
in. I am sure you are making a
good point, but I thought that those additions were helpful at this
stage. Thank you, Lady Winterton, and thanks to the next
contributor.
Q
88Dr.
Harris: I shall have another go with Ben Summerskill from
Stonewall, if I may. I just want to get on the record his
interpretation of the Bill. On page E236 of the explanatory notes,
there is an example of what I am talking about. It
states: “A
Church refuses to let out its hall for a Gay Pride celebration as it
considers that it would conflict with the strongly held religious
convictions of a significant number of its followers. This would not be
unlawful sexual orientation
discrimination.” Do
you think that that is correct? This is a chance to clarify your answer
from
before. Ben
Summerskill: With the greatest of respect, that is a
different question. I am happy to attempt to answer it. Our impression
is that as long as the church is letting out the premises in general,
the exemption does not apply. All the Bill will do is consolidate
existing law in that
area.
Q
89Dr.
Harris: Right. So if it does something commercially to
anyone, even if its main or sole purpose is not commercial, it should
not be allowed to discriminate on grounds of sexual orientation in that
way. Ben
Summerskill: We have always been crystal clear about
that.
Q
90Dr.
Harris: I am not sure that the Bill is, but we can deal
with that in the next
stage.
The
Solicitor-General: Of course it is
clear.
Q
91Dr.
Harris: For the record, the Solicitor-General says that
the Bill is clear. Paragraph 2(2) of schedule 23
states: “This
paragraph does not apply to an organisation whose sole or main purpose
is
commercial.”
The
Chairman: Order. I think that this issue can be discussed
later during the passage of the
Bill.
Q
92John
Howell (Henley) (Con): May I move on to the subject of
multiple discrimination? A recent Select Committee report pointed out
that the current legal framework was totally inadequate in addressing
cases of multiple discrimination. This Bill is the first opportunity to
address that. How important is it for the Bill to address multiple
discrimination? If you can, please give examples from your own
experience, so that we can understand the extent of the injustices that
are being done under the current system. I do not mind which of you
starts. Rob
Berkeley: I will start. It is crucial that the Bill
responds to the notion of multiple discrimination. As discrimination
becomes more complex and sophisticated, particular groups will not be
covered by a single protected ground approach. It has been relatively
difficult to find numerous accounts of situations in which multiple
discrimination applies. I suspect that, in part, that is because people
choose to go down one route or another and try to make a case
on the basis of one ground and fail. From my
experience, a black gay man faces a different set of prejudices to a
white gay man and other men. That would not be covered under this
legislation. That is a missed
opportunity. Theo
Gavrielides: I want to support what Runnymede just
said. The purpose of the Bill is to bring consistency and to address
persistent inequalities. Under the case law before 2004, you were able
to bring a case about multiple discrimination on two grounds, whether
it was race and gender or race and sexual orientation. After a case in
2004, you were not able to bring a multiple discrimination case. We
support the position of the Equality and Human Rights Commission that
two levels of discrimination are enough. We urge for a multiple
discrimination clause in the Bill. Otherwise, this would be another
missed opportunity, given the knowledge that we all have different
elements in our identities. We can be black and gay and we can be black
and disabled at the same time.
Q
93John
Howell: Do you have any thoughts on how you can reconcile
two discriminations with very different burdens of proof? The word that
you used there of “consistency” is important because then
everyone knows exactly where they stand. Trying to ensure that there is
not a dumbing down of the standards of proof, which does not help
anyone, is something that will have to be addressed. Have you thought
about how we might address
that? Theo
Gavrielides: Yes. I have in front of me a very useful
paper that lists multiple discrimination cases before 2004, and cases
that were brought after 2004 on the grounds of multiple discrimination
that were turned down. I am happy to give you the paper. I also have a
separate submission that I want to make, which summarises the points
that I am making
today.
John
Howell: Thank you; I will find that very
helpful.
Q
94Sandra
Osborne (Ayr, Carrick and Cumnock) (Lab): In relation to
encouraging diversity and political participation, there is provision
in the Bill for the women-only shortlist to be extended to 2030. Places
can be reserved on shortlists by parties on the grounds of race and
disability. Do you think that that will achieve greater diversity? Do
you think that it goes far enough, and are you in favour of the
provisions as they
stand? Ben
Summerskill: I do not want to cause any
distress to anyone present, but we are very alive to the fact that
while women-only shortlists in the Labour party—that is where
they have existed—have brought more women into Parliament, they
have not done very much to promote diversity in general. Not a single
woman has been successfully elected to Parliament from a women-only
shortlist who is black or from a minority ethnic community. Not a
single woman who is lesbian has been successfully elected to Parliament
as a consequence of a women-only shortlist. Happily, one disabled woman
has been elected. I use the word “elected” because there
is certain amount of sophistry about how all sorts of women have
benefited from women-only shortlists in what were unwinnable seats for
the Labour party. I know that similar arguments go on around what I
think is called the A list on the other side of the equation. That does
not mean that we oppose women-only shortlists, but we think the
opportunity
to make provision for better representation, particularly given the very
serious under-representation of lesbian and gay people in the House of
Commons at present, could be extended in the way that it is allowed for
in terms of race and
disability. Theo
Gavrielides: I want to support what has just been
said. Of course we welcome the shortlist for women. However, if we go
back to the equalities review, which informed the Equality Bill and the
discrimination law review, it gives us dates by which the gaps will be
breached. One of the gaps that will probably never be breached is to
have a representative House and representative MPs and councils. We
want to see more black and minority ethnic groups being represented. We
want to see more gay groups. Again, we go back to the multiple
discrimination issue—the BME groups can also be BME and gay
groups, or BME and disabled groups as
well.
Q
95Sandra
Osborne: What provision would achieve that, other
than what has been
proposed? Ben
Summerskill: This is where we touch on areas of
positive action. In practical terms, there is a series of things that
can be done to encourage people to engage in party politics—even
though at the moment that is a challenge—and to stand as
candidates in winnable seats under the current system. Clearly, it is
an issue that, in some cases, is being addressed in parallel to this
process by the Speaker’s Conference, which is another terrain
for the discussion currently taking place. Clearly, we hope that it is
something that Members of the House of Commons—without me being
so impertinent as to encourage you to vote for anyone in
particular—will press candidates for the Speaker on prior to
casting their votes in the next few
weeks.
Q
96John
Penrose (Weston-super-Mare) (Con): May I take us back to
the question of multiple discrimination, which John Howell was asking
about before? I am concerned because there is a clear intellectual
argument about why multiple discrimination is important—we have
already had that very ably summarised. It is clearly a serious issue.
The problem that I have encountered until this afternoon has been in
asking a number of stakeholders in this area to provide me with
examples—concrete, real world examples, rather than theoretical
ones, although there are some pretty good theoretical ones. It was not
until Mr. Gavrielides, just now, said that he had a useful
paper with examples that I had heard anyone bold enough to stand up and
say, “I have got some.” Would you please circulate that
to the Committee as promptly as possible, Mr.
Gavrielides?
In advance of
that, could you tell us about those cases, which you were citing, that
were lost, post-2004—I think that that is when you said the
courts changed the rules? The argument that I have had made to me was
that anyone who has had troubles with multiple discrimination since
then would have either won it or lost it on a single ground of
discrimination, whether or not they would have won it or lost it on a
multiple ground of discrimination—that is to say, the outcome of
the case would not have been affected one way or another. Do the
examples that you have in your paper there, which you are going to cite
to us, disprove that assertion and show that it would have actually
made a difference to the outcome of those cases?
Theo
Gavrielides: There are some cases that you can bring
to court only as multiple discrimination cases—you cannot bring
the cases to court as a single discrimination case; it has to be a
multiple discrimination issue, if that makes sense. The cases that I
have in front of me classify direct and indirect discrimination and
harassment, and combine cases such as gender and race—I have a
few—gender and age, gender and religion, and combinations of the
different so-called equality
strands.
Q
97John
Penrose: Does that mean that they were not brought at all,
or that they were brought on a single basis and lost, whereas in your
view they would have been run if they could be brought on a double
basis? Theo
Gavrielides: Most of them were brought as a multiple
discrimination case, not as a single discrimination case, and were
lost—after
1994.
Q
98John
Penrose: I think that we shall have to circulate
that—that would be very helpful. Sorry, Professor
Whittle. Stephen
Whittle: It is very important to remember that if
someone brings a successful multiple discrimination case, they may well
have some sort of compensation for that from two different
sections—two different parts, effectively—and it may well
make a considerable difference to their potential life. Most
discrimination cases provide so little—someone has lost their
job, but what the hell! It is a sort of baring chests exercise, almost.
However, when someone has experienced multiple discrimination and they
have brought both cases successfully, then their award is multiplied as
well. That can make a huge
difference.
Q
99John
Penrose: I guess my point was not about the intellectual
logic of multiple discrimination existing, but whether people had
concrete examples of it existing in the real world. A final question on
this to any of the panel: how do you feel about the notion of limiting
multiple discrimination to just two grounds? We have all the different
strands of discrimination in the Equality Bill, so why limit it to only
two? Rob
Berkeley: At least it is further than we are
now.
Q
100John
Penrose: But intellectually, would you want to see it
limited to three, four or none at all, or just lump them all
in—not that I think that anyone would necessarily qualify for
all of them; but, in theory, as many as
apply? Rob
Berkeley: As many as possible and practicable. Two
may be a way ahead, and would be better than what we currently
have. Theo
Gavrielides: The academic answer is yes, we should
extend to all equality strands. The lawyer’s answer would be
that that is almost impractical. We would need to wait for test cases
to see how it is going to play out in
practice.
Q
101John
Penrose: It would be hideously complicated, I am
sure. Ben
Summerskill: That would simply put the lawyers on to
“Christmas has come early”.
John
Penrose: A huge regulatory burden, which would be
gratefully looked
at.
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