Mr.
Boswell: If an employee becomes a father for the first
time and requires, beyond the normal immediate provisions of paternity
leave, time off for “exceptional family circumstances”
under employment law, would there be a prima facie breach of employment
law or would there be discrimination if the boss said, “Look, I
am really getting fed up with this. You are away all the time, you are
producing these pretexts which arise out of your being a father and I
am going to sack you.” We need an assurance that the boss would
not be able to do that.
The
Solicitor-General: Yes.
Let me top off
my argument on the amendment, which is acknowledged to be probing, by
saying that I agree that it would be only beneficial if we could move
to a situation in which we can commit to extending maternity leave with
pay to 52 weeks at some point. After the first six months, during which
we think that leave is better allocated to the woman, the leave would
become transferable. That would mean that the woman could take six
months leave and then the man could do so. In a direct sense, that
would be a great aid to work-life balance and to redressing the
traditional imbalance in roles.
2.30
pm One
of the Opposition Members, talking about the amendments on that point,
said that such a provision would take away the point of discriminating.
I am not talking about husband and wife now. An employer
faced with a man and woman who are both job applicants will not know
which one will take the time off, and there will be no point in
discriminating against the woman who is going to get pregnant. That has
always seemed to me a key point of that proposal. I hope that I have
given the necessary reassurances on parenthood and paternity. That leaves me
with the question of the protection of maternity and breastfeeding,
raised by the hon. Member for Hornsey and Wood Green. The 26-week
period of protection is not the end of the protection. We have brought
in special protection because we want to enhance the 26-week period,
which is what the World Health Organisation and the Department of
Health recommend for exclusive breastfeeding. We want to frame that and
light it up, to make it clear that there is special protection during
that period. We want to use every available facility, including
discrimination law, to encourage breastfeeding to
continue.
Lynne
Featherstone: I do not understand why there should be any
time limit for breastfeeding. Why should discrimination be allowed at
any point?
The
Solicitor-General: I do not know how long the hon. Lady
has in mind, but discrimination is not allowed at any
point.
Lynne
Featherstone: As I understand it, six months is the
minimum EU requirement. Is that correct?
The
Solicitor-General: Six months is the recommended period
during which breastfeeding should be the exclusive way that the child
is fed. After that, the recommendation is to start to mix foods, but of
course breastfeeding may continue. The hon. Lady need not worry about
protection stopping. It does not stop. It is sex discrimination in any
event to discriminate against a breastfeeding mother. We have made a
special characteristic of those first six months for the purpose of
enhancing their importance.
It is a shame
that the relatively recent 2005 infant feeding survey showed that the
majority of mothers in this country stop breastfeeding long before the
recommended 26 weeks are up. We want to flag up that period and give
encouragement. As I have said, after that period, any discrimination
continues to be direct sex discrimination. If we want to get technical,
there has been a successful claim, notwithstanding that sex
discrimination requires a comparator, but that has not presented an
obstacle.
I hope that
with that reassurance, the amendments will not be pressed, although
they have provoked a useful debate.
Mr.
Harper: I thank the Solicitor-General for that useful
debate. Given her reassurances to me, the hon. Member for Hornsey and
Wood Green and my hon. Friend the Member for Daventry, I beg to ask
leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
Lynne
Featherstone: I beg to move amendment 111, in
clause 4, page 4, line 15, at
end insert
‘caste’. An
amendment to outlaw discrimination based on a person’s
caste.
The
amendment looks again at protected characteristics. We are seeking to
probe the Solicitor-General’s thinking on caste being a
protected characteristic. The caste system exists in the United Kingdom
because it has been imported by a large south Asian immigrant
community. My understanding is the caste system makes distinctions
between different sections of society by dividing communities into
rigid social groups determined by birth and/or occupation. That type of
behaviour in this country is exactly what the Bill, in its essence,
seeks to outlaw, so we ought to give serious consideration to whether
caste-based discrimination should be specifically outlawed by making
caste a protected characteristic.
I am aware
that the Government claim that they have found no evidence of caste
discrimination, but I am interested to hear from the Minister what
efforts the Government have made and how they have sought such
evidence. Does the hon. and learned Lady agree that it is likely to be
more difficult to find out whether discrimination exists in an
immigrant community because of the inherent difficulties of consulting
members of the community about something they know is not part of the
ethos? Just because the Government have not been able to find the
evidence, should we not question whether that discrimination exists in
some form? Those who might suffer caste
discrimination—untouchables, or whatever—are less likely
to be plugged into those routes, to come forward to make a complaint,
or to use the channels that others who are not in a caste system might
use. The
evolution of the Bill has been based largely on engagement with
established and organised lobby groups that are well geared to respond
to the Government’s consultations, but I am not sure that that
is true of those who experience caste discrimination. If the Government
are not persuaded, rather than miss the opportunity of a generation to
outlaw a potential form of discrimination that flies in the face of
everything that the Bill tries to do, why not allow the possibility of
an enabling clause to be enacted by a Minister in the future, if now is
not the right time or if the Minister is not minded to add it as a
protected characteristic? Perhaps we can enact it to protect against a
future where we discover the
evidence.
Mr.
Harper: I rise to speak briefly for two reasons. First, I
want to say one or two things about the amendment. It and the following
amendments raise another issue, which is relevant to how the Minister
might decide to tackle this one. Part of the point of the Bill is to
codify and simplify the law. If we go through the population, pick out
lots of different groups and invent a new protected characteristic for
every single one of them, there is a danger that we will make the whole
thing very complex. I am a little concerned that that is what we are in
danger of
doing. On
a specific point, I suspect that the hon. Member for Hornsey and Wood
Green has had correspondence from the anti-caste discrimination
alliance. It also sent a copy of the letter from the Government
Equalities Office. Two points were raised, and I want to the Minister
to address them. The first is on the lack of evidence. GEO specifically
referred to an informal survey of 20 key stakeholders that the
Department for Communities and Local Government conducted to see if
they were aware of evidence. It would be helpful if the Minister
outlined the nature of the stakeholders, without
necessarily listing them all, because there is
concern that the stakeholder groups might well be those from castes
that do not suffer discrimination. Unless the Government spoke to
organisations representing those who do suffer discrimination, they may
well not have picked up evidence of it. We would appreciate some
reassurance on that point, as well as on whether the GEO or the DCLG is
keeping the matter under review, so that if evidence emerges, the
Government can take the appropriate
action. Secondly,
if such evidence became available, rather than invent a new protected
characteristic, could caste be subsumed in the protected characteristic
of race, given that that already includes colour, nationality and
ethnic or national origin? If it was thought that it was sensible to
act in that case, rather than create yet another protected
characteristic, could a new dimension be added to an existing
one?
The
Solicitor-General: The amendment would add caste to the
list of characteristics. I am invited to add it, in a sense,
speculatively, and I do not propose to accede to that invitation. We
are always willing to consider whether there is a case for legislating
on caste discrimination, but it is not a matter of the Government
“claiming”, as the hon. Member for Hornsey and Wood Green
put it, that there is no evidence of it; it is the fact. We have done
our best to look for the necessary evidence, but we have not found any.
There really is not sufficient evidence to suggest that caste
discrimination is a significant problem domestically. We would protect
if it was seen to be a problem, but we cannot find any evidence to
justify such a measure. One has to appreciate the areas in which
domestic legislation prohibits discrimination—in the workplace,
in vocational training, in the provision of goods, facilities and
services, in education, in the management and disposal of premises and
in the exercise of public functions. There is no evidence that, in
those areas, caste discrimination is
occurring. In
response to a report published by the Dalit Solidarity Network in 2006,
the Department for Communities and Local Government carried out what
the hon. Member for Forest of Dean talked of as an informal look, but
was, in fact, a scoping survey. The survey was carried out by
contacting a number of Hindu, Sikh and Muslim organisations to ask
whether they were aware of any evidence that individuals or communities
had been discriminated against on the ground of caste in Great Britain.
The scoping survey was, in fact, designed to pave the way for a formal
consultation if the evidence came up in the survey, but it did not, so
there really was nothing to take us further forward in a process that
we were perfectly willing to engage with if there had
been. Although
I am sure that many members of the Committee have had correspondence
about this issue from what I shall in shorthand, without the slightest
disrespect, as a write-in campaign, there is, apart from the odd piece
of anecdotal evidence, none of which we have been able to drive down to
a factual basis, still no evidence from that campaign that the
territory which can be covered by anti-discrimination legislation is
impacted upon by caste at
all. John
Mason (Glasgow, East) (SNP): I take the Minister’s
point that there is very little evidence at the moment. Can she at
least give the assurance that, if evidence comes to light in the
future, she will look at this issue again?
The
Solicitor-General: Yes, we are considering looking at it.
I have found out about the stakeholders surveyed. The Hindu Forum of
Britain and the Hindu Council were the two largest and the best we
could do in terms of representative organisations in that field. They
were, and to this day remain, totally against the introduction of caste
legislation. We consulted a variety of predominantly Hindu groups and
some Sikh and Muslim groups as well, and because this was a scoping
survey and would have carried on to a more profound consultation,
people did their best to ensure that we were not talking only to the
discriminators, as it were, and not talking to the discriminated
against.
Lynne
Featherstone: Will the Minister go back to those
organisations to ask why they were so against caste being included as a
protected
characteristic?
The
Solicitor-General: Because it is socially divisive to have
legislation against something that is not happening and is needed by no
one. The hon. Lady is inviting us to introduce a new characteristic
when there is no evidence that protection is needed. That is hardly
going to contribute to community cohesion, and I think that those
groups are very sensible in taking the view that they do, having, we
are satisfied, conscientiously sought for what we asked.
As I said, we
intended to carry on to a real investigation and consultation if there
was the evidence to justify such a step. We were very willing indeed to
do that, and we have no intention of stopping looking now that we have
looked. Officials from the DCLG and the GEO, the Department that
sponsors the Bill, are continuing to monitor the situation and to meet
representatives of interested parties, but even as that happens, we are
still not getting any evidence. The concern was rightly raised, but I
hope that it has now been put to
rest. 2.45
pm
Lynne
Featherstone: I am reassured by the sincerity of the
Solicitor-General and the efforts made by the Government to find
evidence. I still worry about whether they will come back if such
things occur, but at this point I am minded not to divide the
Committee. I accept the reassurance of the hon. and learned Lady that
the Government will keep looking, but hopefully no evidence will turn
up. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Dr.
Harris: I beg to move amendment 112, in
clause 4, page 4, line 15, at
end
insert— ‘genetics
and family medical
history’. An amendment
to outlaw discrimination on the basis of a person’s genetics or
family medical
history. I
rise to speak to the amendment standing in my name and that of my hon.
Friend the Member for Hornsey and Wood Green. It relates to the
suggestion that there should be an additional protected
characteristic—specifically that of genetic information,
including family history—to protect those who might suffer from
genetic
discrimination. The
Committee will know that the matter is a live issue these days not only
in this country, but in the United States. It was the subject of
consultation in the discrimination law review, the issue being that
those
who are genetically susceptible to a condition might be discriminated
against in the provision of insurance in a way that really damages
their life chances. Insurance is just one way, but it is the most well
known. We
are talking about genetic predisposition, and such people do not get
the coverage of the disability protected characteristic. They would be
pre-symptomatic. They would not be exhibiting symptoms. Indeed, they
would not yet have the condition, but the likelihood might be such that
it was significant enough to worry those doing actuarial calculations
on behalf of insurers and would deny such people insurance and leave
them to be discriminated against. Moreover, they could be discriminated
against if the information became available in respect of applications
for work, as employers might not want to take on someone whom they
considered possibly being at high risk of not being able to continue at
work indefinitely or for a specific
time. The
matter was subject to consultation and the Human Genetics Commission,
which the Government set up to advise them
on “new
developments in human genetics and their influence on individual lives,
with a particular focus on social, ethical and legal
implications”, responded
to the discrimination law review, arguing that discrimination on the
grounds of genetic information should indeed be prohibited. I shall
take the Committee through some of its reasons for making that decision
because it is important that we recognise the strength of the case for
such grounds to be included in the
Bill. The
commission
said: “Unfair
discriminatory treatment of groups or individuals on grounds of genetic
difference is
unacceptable”. We
could say that using the adjective “unfair” means that it
is automatic that we would describe something that is unacceptable as
unacceptable. However, I can say more than that: there is a public
interest in ensuring that, rather than creating a group of people about
whom it might be argued that it is justifiable to discriminate against
them on narrow or even broad actuarial grounds, it is wrong to allow
the development of a group of people—a genetic
underclass—who are not able to get insurance or find it
difficult to get employment. The alternative is that we could ban the
discrimination and share the risk on those actuarial calculations of
insurance, for
example.
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