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Memorandum submitted
by Scottish Women's Aid (E 50)
Foreward
1) Scottish Women's Aid
("SWA") is the lead organisation in Scotland working towards the
prevention of domestic abuse. We work to end violence against women by tackling
its root cause, which is gender inequality. We do this by promoting women's
equality and children's rights, campaigning for responses which actively
prevent violence against women, working to ensure that services are available
to women, young people and children with experience of domestic abuse and
providing services and advice to our membership of 39 Women's Aid groups
throughout Scotland.
Introduction
2) We welcome the opportunity to comment on
this draft Bill, which is an important and timely opportunity to consolidate the
law on equality and strengthen the provisions in relation to the gender duty.
3) We are particularly interested in the
possible implications of the Bill in relation to the prevention of
discrimination in employment, service delivery and procurement practice, within
the context of specialist service provision for women.
4) The key question for us is how the
proposals within Bill will continue to support both our own, and our partner
organisations', provision of single sex, specialist, and dedicated services to
women, children and young people experiencing domestic abuse.
5) The
continuing existence of systematic discrimination against women has prompted a
wide response in both UK
and international law, resulting in legislation which emphasises the illegality
of discrimination on the basis of gender, while, at the same time, highlighting
the need for certain exceptions based on single-sex provision.
6) Single-
sex approaches to providing support and services to women, children and young
people experiencing domestic abuse have been proven to be more beneficial and to
compensate for disadvantage related to sex, allowing women to access public
services equally, thus delivering equality of outcomes.
7) The
Gender Duty was one of such responses to discrimination against women, creating
the promotion of equal opportunities between women and men by requiring public
authorities to recognise that the two groups are not starting from an equal
footing and, therefore, that identical treatment will not always be appropriate. This supported the continuation of vital
single-sex services to the needs of women experiencing gender-based violence,
without providers being penalised for not allocating the same services to
members of the opposite sex.
8) While we are broadly in support of the
Bill, we have noted issues in relation to the provision and delivery of
single-sex services which may impact on the ability of SWA and our local
Women's Aid member groups to deliver services to women, children and young
people experiencing domestic abuse.
A) Prevention of
discrimination in employment
9) The
current Genuine Occupational Requirement, or Qualification, which supports SWA
and our Women's Aid local groups to
function as single sex employers of women, is currently contained within
sections 6 and 7, specifically section 7
(2) (d) &(e), of the Sex Discrimination Act 1975.
10) These provisions are imported into the Bill
at Clause 1, Part 9 of Schedule 9 (Work exceptions) which "replicates the effect of exceptions for occupational requirements in
current discrimination legislation, and creates new exceptions in relation to
disability and to replace the existing occupational qualifications in relation
to sex, gender reassignment, colour and nationality. It differs from the existing
exceptions for occupational requirements in that it makes clear that the
requirement must pursue a legitimate aim and that the burden of showing the
exception applies rests on those seeking to rely on it."
11) Our
reading of the Bill concludes that, in relation to the provision of services to
women experiencing gender - based violence, the exemptions support our position as a single-sex employer
of women, delivering separate and
dedicated services to women, and that
the nature and relevance of our services and service-delivery would meet the
requirement that " the limited provision
is a proportionate means of achieving a legitimate aim", particularly in
relation to the provisions of Clause 153 (
Positive action: recruitment and promotion). We would , however, welcome confirmation of
our interpretation of these provisions.
B) Prevention of
discrimination in supply of services, etc.
12) Sections 29 and 35 of the Sex
Discrimination Act 1975, along with Section 83 of the Equality Act 2006, prohibit
discrimination in service delivery but list various exceptions which have
enabled SWA and our local Women's Aid
member groups to provide single-sex, dedicated services to women experiencing
domestic abuse. These include section
34, covering services
by voluntary bodies which exist primarily to provide services to one sex and
section 43, and covering services by charities which provide services to one
sex in accordance with their charitable instrument.
13) Again, we consider that the provisions in Clauses
186 and 187, and Clauses 23, 24, 25, and 27 in Part 6 of Schedule 3 of the
Bill, covering separate and single-sex services, replicate the exceptions in
these existing sections, thereby allowing SWA and our local Women's Aid member
groups to continue our provision of dedicated, single-sex services to women, as
we do now. All the relevant clauses state,
inter alia, that providing separate services for the sexes and single sex
services will not contravene Clause 27 of the Bill preventing discrimination in service,
delivery, etc , " if the limited provision is a proportionate means of achieving a
legitimate aim."
14) Again, we have concluded that the Bill clauses
referred to above replicate the support that current legislation affords SWA
and our local Women's Aid groups in providing a dedicated, single sex service
for women and that the proven necessity of our services generally fall under
the requirement that "the limited
provision is a proportionate means of achieving a legitimate aim."
15) We
would, once more, appreciate confirmation that our interpretation of the
proposed legislation is correct. If the either, or both, of the separate and
single service, work and employment
exemptions are found not to be applicable to SWA and our local Women's Aid
groups in terms of our position as single sex employers and providers of
dedicated, single-sex services to women, then it is likely that SWA and our
members would be unable to function. It
is therefore crucial that any potential difficulties with the implementation of
the Bill are identified and addressed at this stage of Parliamentary scrutiny.
C) Support in the Bill for
dedicated, single-sex, service provision for women
16) The
provisions of the Bill also strengthen the application of both the Gender Equality
Duty and Public Sector Duty, via the obligation on, and powers available to,
Ministers and public authorities to ensure that these are taken into account in
setting equality objectives and in procurement of commensurate services. We
welcome the support that the undernoted clauses offer in terms of the vital and
necessary dedicated, single-sex services for women delivered by SWA, our local
Women's Aid groups and other partner organisations working in the area of
violence against women:-
· Clause 143- Public Sector Equality Duty
The
clause makes clear that complying with the duty might mean treating some people
more favourably than others, where doing so is allowed by the Bill and we note
that the Explanatory Notes make specific mention of domestic abuse services for
women as an example of work supported by this clause.
· Clause 149- Procurement duties-
Local Authorities and contractors
· Clause 152- Positive Action
We note that this clause" provides that the
Bill does not prohibit the use of positive action measures to alleviate
disadvantage experienced by people who share a protected characteristic, meet their particular needs and .. allow
measures to be targeted to particular groups, including..." A particularly supportive aspect of the clause
is that it makes clear that "Any such
measures must be a proportionate way of achieving the relevant aim. The extent to which it is proportionate to
take positive action measures which may result in people not having the
relevant characteristic being treated less favourably will depend, among other
things, on the seriousness of the relevant disadvantage, the extremity of need
or under-representation and the availability of other means of countering
them."
17) These
provisions will assist considerable in ensuring that both single-sex services
dedicated to supporting women experiencing domestic abuse, and resources for
these services for women, are not diluted and that single-sex services
dedicated to supporting women cannot lawfully be eroded by public authorities.
Conclusion
18) For the Bill to succeed, in addition to supporting the issues we have
raised, it is crucial in promoting the Public Sector Duty and the Gender
Equality Duty that the gender perspective is kept high on the agenda, both in
the Bill itself and in the development of subsequent guidance and codes of
practice. This is important in ensuring that the advances made under the
current gender duty are not lost under the Single Equality Duty, resulting in a
gender-neutral approach that has the unintended consequence of actually
disadvantaging women.
19) In this regard, there is also a
need to strengthen penalties for non-compliance with the Gender Equality Duty, to
encourage organisations and public bodies to fully engage with the process and
follow it through.
20) We hope that our comments will
contribute to your assessment of the Bill and welcome your observations on the
issues we have raised.
June 2009
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