Dr.
Harris: The Minister’s final remarks say all that
needs to be said. On that basis, I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 14
ordered to stand part of the Bill.
Clause
15 ordered to stand part of the
Bill.
Clause
16Pregnancy
and maternity discrimination: non-work
cases
The
Solicitor-General: I beg to move amendment 91, in
clause 16, page 11, line 20, leave
out ‘less favourably’ and insert
‘unfavourably’. This
amendment and amendments 92 to 98 would restate the test for pregnancy
and maternity discrimination so as to remove the uncertainty of the
wording of the existing test and avoid any risk of the current wording
in the Bill being interpreted as reducing
protection.
The
Chairman: With this it will be convenient to discuss
Government amendments 92 to
98.
The
Solicitor-General: The amendments will restate the test
for pregnancy and maternity discrimination in clauses 16 and 17. The
current test for pregnancy and maternity discrimination in the Sex
Discrimination Act 1975 has led to the current drafting of
the Bill, which states that a woman must not be treated “less
favourably” for reasons of pregnancy or maternity. It is
unclear, on one view, with whom or with what treatment is to be
compared, so we have tried to make the position clearer. It is settled
law that a woman claiming discrimination because of pregnancy or
maternity is not required to compare her treatment with that of an
actual or hypothetical male or female comparator, and the Bill does not
change that. Clause 16(7) will clarify the current position by
introducing an objective standard by reference to which it can be
tested whether discrimination has taken place.
That was what
we wanted to achieve by including in clauses 16 and 17 the test of
reasonableness. However, a number of organisations, and several right
hon. and hon. Members, expressed concern that the effect of the
provision, even though it was drafted with the stated
intention, would be to weaken the existing protection against pregnancy
and maternity discrimination, which is not what we
wanted. Emily
Thornberry (Islington, South and Finsbury) (Lab): May I
declare an interest as chair of the all-party group on maternity? I
wish to express our thanks to the Minister for listening to the various
groups and individuals who raised their concerns. I know that the
change was made with the best will in the world, but it was thought
that it did not go in the right direction. I am pleased that my hon.
and learned Friend has taken the course that she
has.
The
Solicitor-General: As my hon. Friend has guessed, despite
our original intention, we have acknowledged the unintended
consequences. We do not believe that everyone will discriminate against
women in such a way. None the less, one can envisage how things might
go wrong.
We propose
the amendments to remove doubts about the wording and to avoid risking
the effective delivery of our policy, which is unchanged. We consulted
business representatives as well as those who raised concerns, and
everyone seems to be broadly content with the amendments. I hope that
they will be supported by both sides of the
Committee.
Lynne
Featherstone: I rise briefly to say how much I welcome the
Minister’s recognition of the need to change the wording, which
gave concern to a great number of organisations as well as to hon.
Members. I am glad that the Government realise that it is most
important that nothing creeps unintentionally into the Bill that could
destroy its
purpose. Amendment
91 agreed
to.
Lynne
Featherstone: I beg to move amendment 223, in
clause 16, page 11, line 22, leave
out from ‘if’ to ‘A’ in line
23. This seeks to probe why protection from
discrimination on the grounds of maternity is restricted to 26 weeks
under this
section.
The
Chairman: With this it will be convenient to discuss
amendment 200, in
clause 16, page 12, line 1, leave
out subsection (4) and
insert— ‘(4) A person (A)
discriminates against a woman if A treats her unfavourably because she
is breast-feeding regardless of the age of the
child.’. An amendment to
ensure mothers are protected against discrimination when breastfeeding
even if their child is older than 26
weeks.
Lynne
Featherstone: Amendment 223 is meant to probe the
Government’s reasons for restricting protection for
discrimination on the ground of maternity to 26 weeks after conception.
Amendment 200 does the same for breastfeeding after the age of 26
weeks. I wish to discern why, if the clause is about protecting women
from discrimination, it is time limited. Surely the point of ending
discrimination is just that—to end it.
During a
brief discussion on breastfeeding in a previous sitting, the Minister
said that it was important for women to breastfeed for six
months—I totally agree. All the clinical advice advocates
breastfeeding for at
least six months to give a child as much immunity as possible,
particularly against allergies, and it obviously is the most suitable
feed for the transition to solid food. However, I want to move away
from the purpose of encouraging women to breastfeed. As the Minister
said, if we name something in the Bill, that which is not named takes
on a different import. Putting a reference to 26 weeks in the Bill
would therefore give employers and others leave to discriminate beyond
26 weeks. I am sure that that is not the intention, but it gives rise
to a concern. There should be no limit, and I do not want anyone to
discriminate against a woman who is
breastfeeding. 6.45
pm I
understand that in Scotland this measure has teeth. If an employer
discriminates in such a way, the law comes down on them very heavily. I
should like to see us following in Scotland’s footsteps in this
regard. I hope that the Minister will clarify why 26 weeks has been put
in the Bill. Outside, we are encouraging breastfeeding, so why are we
giving leave to those who might wish to discriminate against women who
breastfeed post-26 weeks? Surely that cannot be the intention of the
Bill.
The
Solicitor-General: We have discussed this matter before.
Last Thursday, I think, an amendment was tabled to extend protection
against maternity discrimination from 26 to 52 weeks. I will not wholly
repeat my reasons for resisting the amendment, which was withdrawn, but
they apply equally now. However, amendment 223 would have a much more
dramatic effect. Without the proposed deletion, the subsection
states: “A
person (A) discriminates against a woman if, in the period of 26 weeks
beginning with the day on which she gives birth, A treats her less
favourably because she has given
birth.” If
the subsection is amended, it would effectively say, “A person
(A) discriminates against a woman if he treats her less favourably
because she has given birth ever.” The hon. Member for Oxford,
West and Abingdon seems to be nodding his head in favour of that, but
such an amendment would create a separate course of action,
discriminating against a woman who may be 95 at the time because she
gave birth when she was 17. That is going a long
way.
Dr.
Harris: My nod was to my hon. Friend the Member for
Hornsey and Wood Green, who asked me whether the Minister was right in
saying that the amendment does have that effect. We have tabled a
probing amendment on the time limit because our previous attempt to do
that was lumped in with a group, so we did not debate whether six
months or two years was the appropriate time. I certainly accept what
the Minister says about the amendment’s effect, but the purpose
behind it—questioning whether there should be a time limit as
low as 26 weeks—is what we hoped she would
concentrate on, having made very effectively the point she has just
made.
The
Solicitor-General: Therefore, we will not accept the
amendment. We introduced protection against maternity discrimination as
part of the implication of the gender directive, which prohibits
pregnancy and maternity discrimination in accessing and supplying goods
and
services, but does not define maternity. The ordinary meaning implies
recent childbirth, as opposed to parenthood. The conjunction of
maternity and pregnancy in the new directive also implies that
childbirth has been recent. Maternity is intended to refer to a limited
period of time after childbirth. We defined maternity as 26 weeks,
during which time a woman is protected from unfavourable treatment
because she has given birth. We are determined that 26 weeks is an
appropriate period, for the reasons that I gave last week. In a
nutshell, the first 26 weeks after childbirth cover the important first
months when mothers are with their babies, during which time exclusive
breastfeeding brings health benefits to both mother and child. The
period also corresponds, as I said last week, to the period recommended
by the World Health Organisation and the Department of Health for
exclusive breastfeeding.
Breastfeeding
is probably the most obvious feature of maternity. It would clearly be
maternity discrimination—unfavourable treatment because of
having given birth—to ask someone to leave a restaurant or get
off a bus because she is breastfeeding. However, there are other
aspects of maternity and other cases in which mothers should be
protected from discrimination for a limited time, so if a landlord
refuses to let a room to a woman with a three-month-old baby because he
thinks that a crying baby would make it more difficult for him to let
the other rooms, that is probably maternity discrimination as
well.
Lynne
Featherstone: I would like the Minister to elucidate why
we have taken a different decision from Scotland. Scotland’s
provision runs to two years, which seems much more equitable. Is there
a reason for that
differentiation?
The
Solicitor-General: Because we are right and they are
wrong,
basically. Amendment
200 would prohibit unfavourable treatment of a woman because she was
breastfeeding, whatever the age of the child. That is less draconian
than the earlier amendment. It would, in a sense, be a protected
characteristic all on its own, but in fact breastfeeding is, as I have
set out, only one aspect—albeit an important aspect—of
maternity. We
favour supporting the period of 26 weeks with special protection, for
the reasons I have given about bonding and the health advantages of
exclusive breastfeeding during that time, but that does not mean that
someone who is treated badly because she is breastfeeding a baby of
over six months is unprotected. That will be direct discrimination on
the ground of sex, as clause 13 makes clear. She will need a
hypothetical comparator, but it is usually obvious that she has been
treated less favourably than he would have been. There has been a
successful claim of direct sex discrimination on exactly that basis,
brought by a former mayor in Trafford, which as I recall was about
breastfeeding in the mayoral
limousine.
Dr.
Harris: I accept entirely that the Minister’s
motives are well meant, based on a point of principle and rational in
respect of the exclusive breastfeeding period of 26 weeks. However, she
has not made the case that legislation—I think we agreed on this
previously in
respect of clause 1—should be relied on to send a message about
the importance of breastfeeding during the first 26 weeks. Indeed,
legislation should not be used in that way, especially when there is a
potential detriment, which is that the message might be—if we
are talking about messages, it can work both ways—that because
there is specific, as she put it, protection up to 26 weeks, it only
goes up to 26 weeks. Some people may feel that that is the case. I
agree with the Minister that it does not only go up to 26 weeks, but
the message sent by the legislation, which is not sufficiently
justified in her terms, runs that risk. Therefore, there is a strong
case for her considering carefully whether my hon. Friend’s
amendment in this respect is better—and it replicates the
situation in Scotland, I would
hope.
The
Solicitor-General: Well, it does not replicate Scotland.
What Scotland has, as I have known throughout but skilfully kept from
the hon. Gentleman for a few moments, is the Breastfeeding etc.
(Scotland) Act 2005 to safeguard the health of children aged under two
by ensuring that they have the right to be fed milk. It covers
breastfeeding and bottle-feeding. Anyone who contravenes that law
commits a criminal offence. I still think that we are right and they
are wrong, but that is the
difference. This
provision is not about sending signals exclusively; it is also about
making a point of protecting the particular period that we think is so
important. I am directed to draw hon. Members’ attention to
clause 13(7), in which sex discrimination is defined to show that less
favourable treatment of a woman includes less favourable treatment of
her because she is breastfeeding. It also states
that “in
a case where B is a man, no account is to be taken of special treatment
afforded”— anyway,
it does not matter about B in this case. The point is that sex
discrimination is specifically set out to include less favourable
treatment because of breastfeeding, so it certainly is not a case of no
protection after six months. It is different protection but it is just
as effective, for the reasons I have set
out. I
hope, again, that hon. Members can be persuaded to withdraw their
amendments on the same point that we discussed last
week.
Lynne
Featherstone: I shall reflect on what the
Solicitor-General has said, but I am not totally at ease with the idea
that a marker will be put down around 26 weeks. I have some concerns
about that, but I take her point that the actual protection is
there.
Dr.
Harris: I think it only fair to the
Solicitor-General’s Scottish sister, Elaine Smith MSP, to point
out that in her letter to us she states that the Scottish Parliament
would, as the Solicitor-General said, recognise that the criminal law
is not the best way of dealing with this issue, but that it did not
have the power to deal with it in any way—whether at 26 weeks or
two years—through anti-discrimination legislation because it
does not have the necessary powers to allow such a route to be pursued.
It is only fair to point out that the Scottish MSP who was behind the
private Member’s Bill accepts the point made by the
Solicitor-General, but perforce had to handle the matter in the way
that she did because of the powers of the Scottish Parliament—if
it were to deal with the point separately. It might be argued that it
should not have done that, but it did.
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