Lynne
Featherstone: This is not an area I am particularly
familiar with. If a golf club wanted to attract members, but only gave
incentives or direct marketing to white people, would that cross the
line in any way?
John
Penrose: I am hoping the Minister will sketch out where
she thinks the Bill already does this and provide some guidance as to
what is allowable, what will continue to be allowable, and where the
Bill draws the line. That is why we have tabled the amendment. I am
hoping it is straightforward for the Minister to give us comfort and
reassurance, but it is important that we get this on the record at an
early stage in the Bill’s passage so that investors, management
and staff in any affected business can be reassured in
future.
The
Solicitor-General: Service providers want to maximise
business, and depending on the nature of it, that will entail
legitimate targeting of campaigns at certain groups. Like the
businesses that have been quoted, another example is a company that
specialises in selling make-up tailored to black women. They should be
perfectly entitled to target that audience by, for instance,
advertising in the black press or using photographs of black models.
The car insurance company which was quoted is an example that I would
have used too.
It would be
where an advert discriminates against a person with a protected
characteristic that it would be unlawful. If the make-up advert
denigrated white women, or the car insurance advert indicated that
lesbians need not apply, such marketing would fall foul of the existing
legislation and of the Bill. Of course, the EHRC would take action in
such a case.
Technically
speaking, marketing and promotion is not a service so it is not within
the Bill’s scope, unless it is discriminatory in the way I have
described. People receive flyers and read adverts before they use the
service. It is only at the point of the customer’s engagement
with the service provider that it complies with part 3 of the
Bill.
John
Penrose: Does the Minister accept that many companies
specialise within the marketing, advertising and promotional world,
advising those who produce the ads and promotional activities she is
describing? If they are participating in creating those promotional
vehicles, might they none the less be captured in that
way?
The
Solicitor-General: I do not know about that. The real
point is that if any marketing or promotion is discriminatory, it would
be in the scope of the Bill. It is discrimination so would come in as
such. However, the Bill deals with goods, facilities and services;
advertising is not within that definition. It is worth noting that the
stakeholders he alluded to—representing financial services and
the age interest—have concluded readily that marketing to
specific age groups is no problem. They are not asking for any change
from this legislation.
Mr.
Boswell: Perhaps the Solicitor-General could help on the
concern which built up in my mind as she answered. It is about the
nature of the campaign itself, picking up the point that the hon.
Member for Hornsey and Wood Green made. Suppose somebody—it
might be for the best of motives, or it might not—produces a
campaign that is presented as a general marketing campaign but uses
models who are all white. I am not talking about two or three, but
about a large population. One might reasonably assume that something is
going on; they are either totally culturally unaware, or they are
wilfully trying to misrepresent the population. Is that
activity discriminatory by itself? If so, with whom, as no service is
being provided, and what action can be taken about
it?
The
Solicitor-General: In so far as it was discriminatory, it
would be discriminatory not so much for being targeted at a group but
for excluding a group. If it excluded or denigrated a group as it went
along praising its target group, that would be discrimination in the
ordinary way, and all the provisions that we are used to would fall
into place exactly as they would with any other kind of discrimination.
There is adequate protection. Targeting is not a problem as such, so
there is no need for the amendment. I therefore invite the hon. Member
for Weston-super-Mare to withdraw
it.
John
Penrose: I think I understand the Minister to have
said—I will play it back to her to ensure that we have got it
absolutely clearly—that provided that promotional or marketing
activities are done constructively and positively to emphasise the
benefits of the thing being promoted and the group to which it is being
promoted, rather than running down anyone else, any company that
indulges in market segmentation or targeted marketing should be on the
right side of the law. If that is the case and I have understood it
correctly—I think that I saw the Minister nodding just
now—
The
Solicitor-General: I am just waiting for
inspiration.
John
Penrose: Perhaps I should talk slowly until inspiration
arrives, in the shape of bits of paper from her advisers. If I have
understood it correctly, we would be willing to accept it. I am,
however, hopeful that the Minister will be able to confirm that before
I can say genuinely that I am willing to withdraw the
amendment.
Mr.
Boswell: Will my hon. Friend give
way?
John
Penrose: I would be delighted
to.
Mr.
Boswell: I sensed that my hon. Friend might require some
assistance. While this is going on, will he consider also—I am
still not wholly satisfied by the Solicitor-General’s
response—that when I described certain conditions that involved
a marketing campaign and not the provision of a good or service, she
said firmly that if it excluded a group of the population maliciously
or, as I suggested, due to a lack of cultural awareness, it would
somehow be covered by discrimination? However, if it is not directly
part of the provision of goods or services, how could it be? Will he
reflect on that, and perhaps reflect my concerns to
her?
John
Penrose: I thank my hon. Friend. I see that inspiration
appears to have struck the Minister; at least, a piece of paper has
been passed to her. If she is willing to reply to us, that would be
helpful.
The
Solicitor-General: I hope that the hon. Gentleman noticed
how indirectly the paper was sent to me. In a nutshell, targeting is
fine as long as it does not exclude or disadvantage people. I hope that
that is clear enough.
John
Penrose: I thank the Minister for that. That implies an
approach in the Bill similar to that taken elsewhere to positive
action. It is okay to target particular groups of people in a positive
way, but denigrating them or running them down is not. On that basis,
and having had that clear instruction and reaction from the Minister, I
beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Dr.
Harris: I beg to move amendment 222, in
clause 13, page 9, line 6, at
end insert— ‘(1A) This
section applies to a person (B) who is perceived by A to have a
protected characteristic, regardless of whether B does in fact have
that characteristic. (1B) This
section applies to a person (B) who has an association with a person
who has a protected
characteristic.’. This is
put into statute two provisions which are explicitly and implicitly
provided for by the relevant directive and by case
law. This
is an important amendment that deals with the question of
discrimination based on association and perception. Some of the points
were raised on Second Reading, so I will not go back to the beginning.
I draw the Committee’s attention to the ruling in the European
Court of Justice case of Coleman v. Attridge Law. The judgment
was that discrimination on the basis of association in respect of
disability—I think that the same thing should apply to age, in a
read-across to the need to care for old or young people—needs to
be covered, and indeed is covered, in European
law.
5
pm I
note that on Second Reading and at the time of the judgment, the
Government said that they agreed and had no problem with that.
Furthermore, the explanatory notes state in paragraph 71 that the
definition in clause
13 “is
broad enough to cover cases where the less favourable treatment is
because of the victim’s association with someone who has that
characteristic (for example, is disabled), or because the victim is
wrongly thought to have it (for example, a particular religious
belief).” That
is a perception and, in that case, a wrong
perception. The
point of the amendment is to probe initially, depending on the
Minister’s response, the reasons why the Government are not
taking the opportunity to set it out clearly in the statute that direct
discrimination is to cover discrimination based on association or
perception. That seems a straightforward thing to do, although if the
Minister identifies problems with the phrasing of the amendment, it is
unlikely that I shall seek to defend the words in it, but if she does
not, the question remains why it is not in the
Bill. A
number of organisations share the view that I have expressed; it is not
an unusual view. For example, the Discrimination Law Association states
that it is important for these prohibited forms of
discrimination—discrimination on the basis of association or
perception— “to
be referred to explicitly on the face of the legislation. In other
words, the prohibition on discrimination by way of association and/or
by reason of perception should be expressly
stated.” The
Equality Commission for Northern Ireland makes exactly the same point.
It says that the commission recommends that the Bill should expressly
state that discrimination due to perception and association is unlawful
in relation to all protected characteristics. Carers UK says that it
believes that carers, employers and even lawyers who are not experts in
discrimination law will have problems interpreting and applying the
provisions unless that is expressly stated.
Those
organisations have direct experience of dealing with these matters and
they see merit in placing the measure in the Bill. The Government must
have considered that and there must be a reason for not doing it. Given
the unanimity of view of those organisations, it would have to be a
good
reason. The
EHRC makes exactly the same point in its briefing. It is concerned that
the measure is not in the Bill. It therefore completes a set of four
groups of people who are concerned that it is not included. In fact, it
makes the point that the explanatory notes do not form part of the Bill
and have not been endorsed by Parliament; they are not, and are not
meant to be, a comprehensive description of the Bill. Therefore,
relying on the explanatory notes is not ideal, and although ministerial
statements are useful, it is very difficult to ask people who need to
know about this provision to be aware of every ministerial
statement. The
EHRC states that it would also like to see in the Bill express
protection from discrimination based on association and perception
generally. It says that for a number of reasons and it is important to
enumerate them. First, like the other organisations, the EHRC believes
that it is important to make it clear that that is covered as part of
an educational experience, although I know that that alone does not
warrant the inclusion of a measure in the Bill. Secondly, it is
concerned that there may otherwise be perceived to be some regression.
It says that discrimination because someone is perceived to be or is
associated with someone from a particular racial group or religion or
belief group or sexual orientation is currently prohibited in some
areas, and the concern would be that if the “because”
language—we have already debated that, but not on this
point—was not interpreted by the courts as including perception
or association, that would run the risk of
regression. I
do not think that that is a particularly strong point, because the
courts are clearly bound by what the Minister would describe as the
intention of Parliament and, indeed, the ruling of the higher court, at
least in the case of Coleman. However, the EHRC also makes the point,
which I agree with—this point is important, given what the
Minister said about gender reassignment—that perception is so
much a factor in respect of protection on the grounds of gender
reassignment, especially given how unhappy some of us are with the
existing wording, that it is essential that it is very clearly
understood that the protection is there in respect of the perception of
someone as undergoing gender reassignment, even if they are not or are
not proposing to be because, for example, they are merely
cross-dressing and they do not do so all the time with a view to going
on a journey, as the Minister calls it, permanently to change their
gender
identity. The
Joint Committee on Human Rights, which has put on its website a copy of
a letter that it sent to the Minister, asked the Government the same
question: why is that provision not included in the
Bill? It
is appropriate to ask now, rather than in a clause stand part debate,
about clause 13(4), which
specifies: “If
the protected characteristic is marriage and civil
partnership”, as
far as work is concerned—employment—people cannot claim
direct discrimination by association, because it is only
where “B
is married or a civil partner.”
The explanatory note
says, without explanation, so it is only a partially explanatory note,
that “a
different approach applies where the reason for the treatment is
marriage or civil partnership, in which case only less favourable
treatment because of the victim’s status amounts to
discrimination.” I
think that that precludes discrimination by association. There may be a
good reason for that, but it is not explained in the explanatory notes,
which is
unfortunate. That
is the basis for my amendment, which I hope the Minister will look
kindly on, because, although it may not be the first preference in
drafting the Bill, I do not believe that it does any harm, and it will
certainly satisfy a number of organisations that have expressed
concerns.
Mr.
Harper: I shall be brief. We touched on perceived
disability and discrimination by association when debating some of the
amendments that I tabled on clause 6 and, in that case, the
Minister’s explanation was satisfactory, so I asked leave to
withdraw
them. The
hon. Member for Oxford, West and Abingdon makes some good points. Both
the Minister’s explanation and the explanatory note say that the
wording in the Bill is clear enough and that it covers what the hon.
Gentleman mentioned, but state some concerns that are shared widely. I
will listen with great care to the Minister’s detailed
explanation about whether the wording in clause 13
adequately captures the points raised by the hon.
Gentleman.
The
Solicitor-General: The amendment would make it explicit
that direct discrimination includes less favourable treatment of
someone because of their association with somebody who has a particular
protected characteristic, or because they themselves are perceived,
rightly or wrongly, to have that
characteristic. The
clause derives, in part, as the hon. Member for Oxford, West and
Abingdon said, from Coleman v. Attridge Law in the European
Court of Justice, which said that the European directive’s
definition of direct discrimination implicitly includes the concept of
discrimination by association. Although the clause derives from that in
part—it is written with large exclamation marks around it at the
moment because that is quite a recent decision—in 1975, or
thereabouts, our domestic courts reached the same conclusion, which was
that, under the Race Relations Act 1976, direct discrimination
implicitly included discrimination by association. Our own courts have
also held that the definition implicitly includes the concept of
discrimination by perception in a different case in
1983. I
say that because we do not have something absolutely new and we are not
putting it explicitly into the Bill, which the hon. Gentleman could
have argued would have been dangerous, because something new needs to
be written in large letters. I used that argument when I talked about
listing the people to whom the socio-economic duty was due, saying,
“It is a new duty; let us list the people that it applies to so
that everyone knows who is in and who is out.” That would have
been an argument had those two domestic judgments, both now more than
20 years old, not injected that interpretation into our domestic law,
pointing towards the conclusion in Coleman arrived at by the European
Court. The
Bill’s definition of “direct discrimination”
includes those concepts. I am pretty ready to accept, honestly, that at
the very first look at the clauses there is a
transparency argument for making the protection explicit, as some
definitions of “direct discrimination” in current
legislation do. However, the reason that we have not is to widen the
ambit of clause 13, being careful not to narrow it
inadvertently. Before
I explain what might at the moment look like an odd concept, I shall
say one more thing, which is that we want people to be able to access
their rights. I have spoken about that recently, in saying that
simplifying the language is an important component of encouraging
people to look, and to see what they are entitled to. One might say,
“Well, let us put in association and perception,” so that
they can see what their rights are in those connections. For the reason
that I am about to set out, it is not so wise to do that in this case
as it was in the question of “because”. Also, I venture
to suggest that discrimination by association or discrimination by
perception are quite complex ways of expressing something anyway, and
may not throw all that much light on what they are about for the lay
person. Here
is the core of why we do not think that we should accept the amendment.
The “because of” turn of phrase in clause 13 is broad
enough and is intended to be broad enough to cover much more than just
cases in which the less favourable treatment is due to the
victim’s association with someone who has the characteristic or
because the victim is wrongly thought to have that characteristic. The
formulation is intended to and does cover cases, for instance, of less
favourable treatment because of a refusal to comply with instructions
to discriminate. It is also intended and does cover a case in which
someone is treated as if they had a protected characteristic that they
neither have nor are perceived to have at the
time. “Direct
discrimination” has a number of forms—a lot of different
forms. Even after the Bill, what the definition covers will continue to
evolve through the case law. That is really the point. We do not want,
by specifying particular kinds of direct discrimination, to imply that
we are excluding kinds of discrimination that might come about in a
situation that we have simply not foreseen when setting out the clause.
So, we favour what we see as a broad
formulation. The
amendment is not perfect, as has been said, but it has been drafted in
such a way as not to preclude the clause’s application to other
forms of direct discrimination. However, there is always that lawyerly
problem—I forget how many members of the Committee, as well me,
are lawyers. I know that the Parliamentary Secretary, Government
Equalities Office, is. The danger is that, if we name something in a
section of a statute, by implication we exclude or devalue things that
are not named. In a nutshell, that is the thinking behind not putting
in association or perception
expressly. In
the example quoted by the hon. Member for Oxford, West and Abingdon, in
clause 13(4), he would say—he may be right—that
discrimination by association or by perception are excluded. In a way,
by analogy with the arguments that I have just launched, that is a
powerful implication that association and perception are included in
all other aspects of clause 13. However, because there is a change in
perception and because it is so central to the world of carers that the
law has now emerged and crystallised in the Bill after the Coleman
case, we will promote it as strongly as we can to ensure that everyone
knows their rights. Outside the ambit of
making the Bill clear, the availability of the new rights needs to be
made clear. People probably do not need to worry about that because
Carers UK has very much got the bit between its teeth. It is pleased
with these changes in the law, and it will certainly ensure that the
caring community knows that it will now have these new rights. We will
do everything that we can to support the ambition of making the rights
transparent. 5.15
pm I
hope that the hon. Gentleman will be content to withdraw his amendment
because of, first, my clear statement that association and perception
are included in the definition in clause 13 and, secondly, the danger
that I have set out of naming something and excluding something
else.
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