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