Equality Bill

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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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