Clause
195Ministers
of the Crown
The
Solicitor-General: I beg to move amendment 294, in
clause 195, page 138, line 34, at
end insert— ‘( )
an order under section [Combined discrimination:
dual characteristics](8) (combined discrimination:
circumstances where proceedings may not be
brought);’. This
amendment would provide for an order made under the new clause that
would be inserted by new Clause 26 to be subject to the affirmative
procedure in
Parliament.
The
Chairman: With this it will be convenient to
discuss Government new clause 26— Combined discrimination:
dual characteristics.
The
Solicitor-General: New clause 26 will provide protection
from discrimination due to a combination of two protected
characteristics—I will call that dual discrimination. It will
enable someone who has been treated less favourably because of a
combination of two protected characteristics to bring a claim and
secure a
remedy. We
know that some people may experience discrimination because of a
combination of protected characteristics over which they have no
control, and that they have no protection in that situation. For
example, a black woman or man of a particular religion may face
discrimination because of stereotyped attitudes to that combination. It
is difficult, complicated and sometimes impossible to get a legal
remedy in those cases, because the law requires them to separate out
their different characteristics and bring separate claims. That means,
for example, a black woman who is discriminated against having to pick
what she thinks is the likelier reason. Should she bring a claim for
race discrimination and then one for sex discrimination? She might not
succeed in either if the employer can show that black men and white
women are not treated the same and so
on. 3.15
pm The
problems of not having the measure have been reasonably well aired. One
of the consequences of the diversification of British society and the
advances in equality that we have made is that discrimination is
becoming subtler. Vulnerable people with a combination of protected
characteristics are, in particular, still experiencing discrimination
for which there is no remedy. We raised that issue in the consultation
document “Discrimination Law Review: A Framework for Fairness:
Proposals for a Single Equality Bill for Great Britain”, back in
2007. We
asked for evidence of the problem. Many replies highlighted the issue
and argued that the law needed to be changed to reflect the fact that
people’s identities are multifaceted. We then committed to
exploring further the extent to which we could allow multiple
discrimination claims to be brought without making the law overly
complex or placing an undue burden on those with responsibilities under
the law.
The document
“Equality Bill: Assessing the Impact of a Multiple
Discrimination Provision” presented a potential remedy for dual
discrimination. That has been looked at during the past six
weeks by interested parties. We also consulted on the specific clause,
which is a good thing to have done because it clarified what we were
intending to do, particularly for businesses and organisations. The
overwhelming response was that businesses and organisations recognised
that there was a gap in the law. However, they also expressed concerned
that there should not be a disproportionate burden placed on
them. Most
businesses recognise that if they comply with existing discrimination
legislation and make rational decisions for non-discriminatory reasons,
they will not fall foul of the new provision. We know that the majority
of businesses will do exactly that.
Costs were an
issue for some businesses. They said that they were concerned that
risk-averse businesses might spend money unnecessarily to over-comply
with the law. Managing perception and minimising unnecessary
over-compliance will be key and the availability of clear, practical
guidance at an early stage will be important to ensure that that
happens. We
will work with the commission and other relevant organisations, such as
Business Link, to prepare and disseminate the guidance in good time. We
think it is probably a good idea to make the change to call this dual
discrimination, so that we turn a new page and make it clear that the
provision is limited to combinations of two. Again, there have been
some false hares set running on the extent of the measure, so we are
calling it dual discrimination
now. Some
Opposition Members have suggested that there should be a provision
enabling claims combining an indefinite number of characteristics and
that indirect discrimination and harassment should also be included.
Let me reiterate what I said in earlier debates, so that we have the
whole case about our position present as we debate the new clause and
the amendment. We have evidence of people experiencing discrimination
because of a combination of two protected characteristics, but there is
insufficient evidence of cases involving more than two for us to feel
that further regulation is
warranted. The
evidence does not suggest that claims of harassment are failing under
the existing law where more than one protected characteristic is
involved. The harmonisation of the definition of harassment as being
unwanted conduct “related to” instead of “on the
grounds of” a protected characteristic widens the provision and
makes it even more likely that intersectional harassment would be
remedied by means of a single-strand
claim. We
are also not convinced of the need to include indirect discrimination.
There is limited evidence that victims of indirect discrimination are
failing to get the protection they deserve. Indirect discrimination
involving more than one characteristic—for example, dress codes
preventing Muslim women from wearing veils or Sikh men from wearing
turbans—is likely to be remedied under current
law. We
think that including indirect discrimination within the provision would
mean businesses and employers having to consider the impacts of their
policies and procedures on every possible combination of protected
characteristic, which is not proportionate given the lack of evidence
of
need. The
new clause is also limited to the relevant protected characteristics
listed in subsection (2). That excludes maternity, pregnancy, marriage
and civil partnership simply because we are not aware of any evidence
of a need. Moreover, in respect of pregnancy and maternity, it would
unnecessarily complicate the law to combine that protected
characteristic with another for which a comparator is required. There
is no need for a comparator, of course, for pregnancy and maternity.
Overwhelmingly, there does not appear to be any
need. Increasing
the number of protected characteristics that could be combined,
including harassment and indirect discrimination, would impose a
significant burden on businesses that are simply doing their best to
comply with the law. We think that would be disproportionate. We hope
that we have an appropriate balance in place. Hon. Members are welcome
to debate the matter again now. There is an amendment on how
regulation-making power should be used and I will answer that when
opportunity arises.
Mr.
Harper: I will not take up too much of the
Committee’s time because we had a reasonable debate on this on
clause 13. I will reiterate what I said then, which is that the
Government were sensible to consult on the draft clause and make it
clear that they would respond where there was evidence of a
problem.
When
introducing the amendment and the new clause, the Minister said a
little about responses from consultees. I am not sure whether she
already has, but will she confirm whether the Government have published
the responses yet? I could not find them on the website, but that might
be down to my inability. If they have not been published, it would be
helpful if they
were. In
the responses sent directly to members of the Committee, there was some
evidence to back up what the Minister is now calling dual
discrimination. I did not see evidence of any cases involving more than
two grounds. On clause 13, we debated whether we should have two or
more. At that point, the Minister said that having more than two made
for a ridiculous number of possible combinations and was therefore
disproportionate. I
agree. The
Government have gone about this sensibly. The new clause is exactly as
it was consulted upon and the Government have had responses on that as
well. That seems a very reasonable
approach. The
responses to the consultation sent to members of the Committee show
that some business organisations are not entirely happy with the
proposal and think there will be an increase, but looking at the impact
assessment and the likely number of cases, it does not seem that there
is going to be a significant
problem. The
bigger problem, which was brought out in the British Chambers of
Commerce response and has been touched on already by the Minister, is
of employers gold-plating their practices. It might be not a real
problem, but a matter of how people respond to it. The Minister is
right that that can probably be offset by the quality of the guidance
received from the Equality and Human Rights Commission, making it clear
to employers what they do and do not have to do to comply with the dual
discrimination part of the law. If that is made crystal clear to
businesses and they act proportionately, the costs and burdens will be
as in the impact assessment and therefore themselves proportionate. The
Minister said that very clearly and I think the EHRC will take it on
board. If it does, this should be relatively
trouble-free.
Lynne
Featherstone: I welcome new clause 26. It is helpful that
we have moved on to dual discrimination. In a sense, bringing together
the different bodies as the EHRC mirrors the fact that we want to bring
together all these issues. People suffer not necessarily because they
have one protected characteristic, but because they have many. I am
surprised that there was no or little evidence of more than two types
of discrimination taking place. If there was none, I shall follow the
lesson the Minister has given me, which is that I must not think up
things that do not exist, but deal with real harm. However, I would
like to keep this point open in the minds of members of the Committee
because if there are examples when the legislation comes into force of
it not working on the basis of dual discrimination, we will have to
look at it again. For now, this is a great step forward and I am very
happy with it.
Mr.
Boswell: I, too, welcome the measure and the way the
Solicitor-General explained it. There is no attempt in the Committee to
subvert it, nor any belief that there is no problem. There is a
problem, which I often think can be encapsulated by the term
“Bangladeshi women”, although it would be demeaning to
suggest that that is the only problem. As the Solicitor-General said,
there are many such cases because we live in a complex society that has
overlapping
discriminations. Perhaps
I did not pay enough attention, but I would like it to be made clearer
what the evidence base must be for such a claim. I think that it is
right to confine the measure to dual discrimination—that is, two
protected characteristics that co-exist and lead to discrimination. In
building up a case that such discrimination has taken place, it is not
clear whether the two characteristics should be looked at together,
cumulatively or alongside each other. That might become clear when we
receive EHRC
advice. There
is a sense in which one does not want a “speak your
weight” machine, which says that there was 15 per cent.
discrimination in relation to race and 7 per cent. in relation to
gender, and that that is not sufficient to make a critical
case. The
lacuna that existed in the law was that it was impossible to look at
the two factors together and they had to be treated separately, even
though they were clearly not separate. There are still some
difficulties with looking at them together and I would like the
Solicitor-General to reflect on that for the
Committee. When
trying to establish the reasonableness and credibility of an
organisation’s employment practices, the organisation might
produce targeted audits. I am talking about larger employers that have
human resources departments and so on. It might have done a gender pay
audit and at a different time, using a different reference frame, it
might have done a study of its recruitment practices in relation to
ethnic minority representation. When it is trying to build up a
defence, which companies will do in some cases, it might adduce those
two pieces of evidence even though they do not fit together
exactly. Just
as the problem reflects a frame that is too narrow, many of the
practices undertaken by companies are themselves traditionally
expressed by one protected characteristic or another. They are dealt
with sequentially, rather than together. Perhaps that is the only way
to express them coherently. Clearly, if an employer picked on somebody
because of two protected characteristics, nobody in the Committee would
have any time for that. However, I am concerned that in trying to meet
this problem we might have difficulty in establishing a plausible and
successful case at
tribunal.
The
Solicitor-General: I have just four things to add. First,
the hon. Member for Forest of Dean asked about publishing the
responses. In the summer, we will publish a summary of the responses
and an updated impact assessment based on the consultation. He will get
that information pretty soon. We will monitor how the measure operates
after it comes into effect to see whether any evidence of further need
emerges; I think that is the point the hon. Member for Hornsey and Wood
Green made. However, we have not seen any such evidence yet, as I have
said.
3.30
pm I
am not entirely sure that I followed the point made by the hon. Member
for Daventry about proportions. Perhaps the classic situation would be
a black woman being treated less favourably than a white woman and also
less favourably than a black man. With that kind of combination, we
would not really need to allocate which was which; indeed, it might not
be possible.
I should add
one point finally and I do so with an apology. I have muddled amendment
299, which is yet to be debated and is a Liberal Democrat amendment,
with amendment 294, which is a Government amendment. I should address
amendment 294 briefly, if I may, Mr. Benton. I am sure that,
if anyone had a point to make about amendment 294 in further debate,
you would show the discretion to allow it. However, I cannot imagine
that there will be such a point.
Under
subsections (6) and (7) of the clause, we have provided that, where the
discrimination is subject to the exclusive jurisdiction of a particular
court, that jurisdiction is limited to one of the protected
characteristics in the combination. Then the claim cannot be brought
under the clause. For instance, that would relate to claims of
disability discrimination in education, which would go exclusively to a
specialist tribunal.
Under
subsection (8) of the clause, there is a power to specify other
circumstances in which claims are excluded. That is to allow us to
exclude classes of claim or to specify the evidential standard further,
if it is necessary. For instance, that could be invoked if it is found
that courts or tribunals reach unintended conclusions or have any
difficulty with practical implementation. Therefore, amendment 294
amends clause 195 to ensure that the affirmative procedure will apply
to any exercise of the power to which I have just alluded.
I cannot
imagine that amendment 294 will give rise to any further debate, but I
apologise for missing it out in the first place.
Amendment
294 agreed to.
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