Equality Bill

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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.
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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.
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.
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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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