The Work of the Home Office - Equalities - Home Affairs Committee Contents



WRITTEN EVIDENCE SUBMITTED BY DISCRIMINATION LAW ASSOCIATION

1.  The DLA welcomes the opportunity to make very brief written submissions to the Home Affairs Select Committee ("The Committee") in its current Inquiry on Equalities. In particular, the DLA wishes to set out, in brief, its concerns about the potential negative impact on equality protection of the manner in which the government is approaching equality issues, including the policy proposals foreshadowed in the Budget announcement earlier this month. In the DLA's view, the matters we highlight below are inconsistent with the putative principles set out in the Government's December 2010 Equality Strategy. Against the background of a significant assault on public sector funding and the public funding of legal services, the DLA regards it as imperative to draw the Committee's attention to the practical and adverse impact of the issues highlighted. The DLA has also had sight of the following submissions to the Committee:

(a)  The Equality and Diversity Forum's ("EDF") "Memorandum from Equality and Diversity Forum to the Home Affairs Select Committee Inquiry on Equalities" ("EDF Memorandum").

(b)  "Written Evidence submitted by SCOPE", March 2011 ("SCOPE Submissions").

(c)  Submission to the House of Commons Home Affairs Committee inquiry into the "Equalities agenda of the Government", Equanomics UK: 11 March 2011 ("Equanomics UK Submissions").

(d)  Further submission to the House of Commons Home Affairs Committee inquiry into the "Equalities agenda of the Government". Equanomics UK: 30 March 2011 ("Equanomics UK Further Submissions").

2.  The DLA endorses, in broad terms, the sentiments expressed in those documents.

3.  By way of introductory comment, the DLA specifically endorses the EDF's criticism of that aspect of the Equality Strategy which suggests that equality may be best guaranteed by simply recognising the needs of individuals. Such an approach ignores a wealth of evidence, known to the government, of the systemic and particular disadvantage faced by particular groups in society. An approach which side-steps this evidence cannot be characterised as consistent with promoting substantive equality for all.

DEPARTMENTAL OVERSIGHT

4.  The DLA was pleased to note that the Government's Equality Strategy was intended to reflect its recognition of equality as "an integral part of [its] commitment to build a stronger economy and fairer society".[79] However, the way that the government has sought to organise equality oversight, and its apparent indifference to the disparate impact on disadvantaged groups of its fiscal policies, is at odds with that stated recognition. In addition, there are clear gaps in the Equality Strategy and the DLA refers the Committee to the criticisms made of the strategy by other interested organisations.[80]

5.  The DLA welcomes the fact that the Equality Strategy highlights the existence of the first ever inter-departmental ministerial Group on Equalities and identifies some of the ministers responsible for particular equality areas/protected characteristics (See p.1). It is a little disappointing that the group does not appear to reflect the diversity of the communities it has been set up to serve (eg only four of 13 are women and there appears to be no visible BAME presence). In addition, as far as the departmental oversight of equality matters is concerned, the DLA wishes to point to the following issues which do not assist in the delivery of coherent and sound equality policy:

(a)  It is not clear from the Equality Strategy whether anyone, and if so who, bears responsibility for certain areas of equality protection such as those relating to Pregnancy and Maternity or Transgender issues.

(b)  The allocation of responsibility for different protected characteristics in different ministries is not in principle a negative step but there are major concerns about the ability of the government to have a coordinated, effective and coherent approach where for example race and religion is dealt with by the Department for Communities and Local Government and gender falls under the aegis of the Minister for Women and Equalities. It would be helpful if the Government Equalities Office were to make it clear how proper co-ordination is to be effected and how it will ensure that the different ministries all have sufficient knowledge, understanding and expertise in relation to the equality issues now placed within their remit.[81] The DLA notes and endorses the questions raised by Equanomics UK in relation to the absence of a nuanced strategy in relation to race equality.

THE GOVERNMENT EQUALITY STRATEGY AND RECENTLY PROPOSED FISCAL RESTRAINT MEASURES

6.  On 23 March 2011 the Chancellor, George Osborne announced, as part of the government's Plan for Growth, the following proposals which will have a significant impact on equality:

—  The "dual discrimination" provisions in the 2010 Equality Act will not be implemented.

—  The right to request flexible working to parents of 17 year olds (planned for April) will be repealed.

—  The Government will consult to remove the requirement in the Equality Act 2010 for businesses to take reasonable steps to prevent persistent harassment of their staff by third parties.

—  There will be a moratorium exempting micro-businesses and start-ups from new domestic regulation for three years from 1 April 2011.

—  There will be funding for additional work experience placements for young people and apprenticeship places.

—  Government will launch a public thematic review to reduce the stock of regulation and will launch a major drive to revise burdensome EU regulations and directives.

7.  The DLA, together with other equality-interested organisations, were stunned to learn that the government used its budget announcement on 23 March to indicate its intention not to implement, or to repeal, equality enhancing measures. Enquiries made by the DLA indicate that the EHRC, the statutory body established to promote and enforce equality and human rights law, was not aware before the budget announcement of the proposals to repeal the "dual discrimination" provisions or those relating to "third-party harassment". Few equality organisations would have expected to learn of proposed repeals in this context. Interested organisations, including the DLA, have campaigned for years for protection against discrimination based on a combination of characteristics to be incorporated into domestic legislation. Similarly, the provisions in relation to persistent third party harassment reflect careful judicial consideration of the effect of the amendments to the Equal Treatment Directive (Council Directive 76/207/EEC) by Council Directive 2002/73/EC.[82] It is, in the DLA's view, antithetical to any notions of transparent and open governance for well wrought and debated provisions to be discarded without any warning or obvious justification. This cannot possibly be seen as evidence of a commitment to "embed" equality. The DLA wishes to place on record with the Committee its general concern about this approach as emblematic of the government's increasing lack of respect for equality considerations. The DLA expressly endorses the point made in the EDF Memorandum referred to above in this regard.

8.  In its Equality Strategy, the government indicated that it would continue to "prioritise interventions that will advance equality of opportunity and make the greatest difference to people's lives".[83] The measures that the government proposes to dispense with—as pre-figured in the budget announcement—together with the other public sector spending cuts proposed, will do precisely the opposite of this. As suggested in the EDF Memorandum, the proposals made in the budget announcement appear to treat equality considerations as a burden on business to be eradicated rather than a benefit to be pursued.

9.  The measures which the DLA wishes to highlight specifically are as follows:

(a)  Refusal to implement dual discrimination provisions: These provisions were intended to ensure that victims of discrimination were able to seek redress for discriminatory treatment based upon their lived experience as individuals and not simply persons of one or other protected characteristic such as disability, sexual orientation or gender. This was intended to reflect the fact that individuals might be discriminated against as "white women", "black men", "Muslim women" etc rather than simply as men or women or persons belonging to a particular religious group. It is inconsistent with the government's commitment to respect the "needs of individuals" for this progressive measure to be discarded. The provision was aimed precisely at respecting persons as whole individuals rather than as fractured entities to be regarded as suffering disadvantage only on the basis of one aspect of their being. Further the evidential basis for the assumption that these provisions would have costs businesses £3 million annually is not at all clear. It is quite possible that the implementation of these provisions might be costs-saving where they avoid multiple claims.

(b)  Removal of the requirement in the Equality Act 2010 for businesses to take steps to prevent persistent harassment of their staff by third parties: The DLA is extremely concerned that this retrograde step may place the UK government in breach of its EU law obligations (See R(Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] I.C.R. 1234 at paragraphs 36-40 for consideration of the requirements of the Equal Treatment Directive in this regard). It was suggested in the budget announcement that the requirement placed an unreasonable burden on employers to prevent conduct which was outside of their direct control. This provision very simply places an obligation on an employer (who is best placed to bear responsibility for protecting an employee from harassment whilst at work) to prevent persistent harassment by third parties.[84] It would only hold an employer legally responsible where s/he knows that an employee has been harassed on two or more occasions and fails to take reasonable steps to prevent further harassment. This provision is precisely directed at circumstances which an employer ought properly to be able to control. The above comment in the budget announcement is therefore both misleading and disingenuous.

(c)  Moratorium exempting micro-businesses and start-ups from new domestic regulation for three years from 1 April 2011. This proposal, particularly in light of the downturn in public sector employment which will be the necessary consequence of the cuts, will mean the disapplication of any new rights (whether required in order to comply with international treaty obligations or otherwise) in the cases of a large percentage of the workforce. More than 80% of private sector employees currently work in businesses with ten or fewer employees. This could result, therefore, in large swathes of the workforce being divested of or disentitled to the benefit of important equality/employment rights.

(d)  Review of employment law and regulation: This includes proposals to restrict maternity and paternity leave in a manner inconsistent with the European Parliament's interpretation of the Pregnant Workers Directive. No analysis has been advanced of the pro-social reasons for increasing maternity and paternity leave in accordance with the European Parliament's view and all that has been stated is that this will save UK businesses £2 billion per year. Again, the DLA questions the evidential basis upon which this assumption has been made. It also points to the absence of any analysis of the negative consequences for issues such as the reduction of the gender-pay gap to which it must be assumed the government only intends to pay lip service. The government's stated intention to de-regulate and relieve businesses of the "burden" of guaranteeing rights for its workers is very difficult to reconcile with its stated commitment to equality in its Equality Strategy.

(e)  Repeal of right to request flexible working to parents of 17 year olds which was to come into force in April 2011: As suggested in relation to the moratorium for small businesses and the review of employment law, it is an intervention which expressly deprioritises the advancement of equality of opportunity.

PROPOSALS FOR REFORM OF THE EQUALITY AND HUMAN RIGHTS COMMISSION

10.  The membership of the DLA has not had the opportunity to give sufficient and detailed consideration to the proposals for reforming the Equality and Human Rights Commission. However, in the context described above, and having regard to the proposals to remove many of the EHRC's powers and duties, the DLA regards the title of the consultation document, "Building a Fairer Britain: Reform of the EHRC", as risible. The DLA shares the concerns expressed in the EDF Memorandum, the SCOPE Submissions and both sets of Submissions by Equanomics UK in this connection. We consider that the proposed reforms are emasculating and inconsistent with any commitment to securing equality. Further, the DLA considers that the extent of the proposed reforms may well place the UK government in breach of its EU Law obligation to ensure that there exist designated bodies responsible for the promotion of equal treatment of all persons without discrimination.[85]

11.   We would make the following further initial comments for the Committee's consideration:-

(a)  The DLA is concerned that well-publicised managerial and financial problems that have beset the EHRC in its first years are being used as justification for sweeping proposals which would limit its future independence and reduce its legal competence and capacity to promote and enforce equality and human rights.

(b)  We are further concerned that in its proposals the government appears, wrongly in our view, to regard equality and human rights as separate matters, for example suggesting (paragraph 1.14) that narrowing the EHRC's equality duties will "enhance its capacity to develop and deliver a programme to promote and protect human rights." Equality is an important human right, and increasingly the UK and European courts are applying human rights principles in equality cases. We strongly agree that the EHRC has and must retain important human rights functions, but these will not be enhanced by limiting its equality functions.

(c)  As the EDF suggests, the combined proposals to remove EHRC advice and support functions should not be considered in isolation. They would come on top of major cuts to legal aid, loss of local authority funding of advice agencies and accompany proposals to make it more difficult to bring discrimination claims in employment tribunals. Discrimination cases are rarely simple or straight forward. Research shows that already very few people challenge discrimination; they prefer to give up their jobs. One of the main reasons for this has been the patchy and fragile network of legal support. By ending the EHRC legal grants programme, the government will be closing possibly the last door to specialist legal advice and help for discrimination cases.

PUBLIC SECTOR EQUALITY DUTY—NEW PROPOSALS FOR SPECIFIC DUTIES

12.  The DLA also endorses the position in the EDF Memorandum in relation to the public sector equality duty and is dismayed by the late proposals effectively to reduce the specific duties to little more than nominal obligations for all government departments, national public authorities and listed English public authorities. In the circumstances, the DLA, like Equanomics and the EDF, urges the government to take urgent steps to ensure that that the EHRC publishes a statutory code of practice giving clear guidance on the general duty contained in section149 of the Equality Act 2010 in the very near future.

March 2011


79   See "The Equality Strategy-Building a Fairer Britain", GEO, December 2010, p.24. Back

80   See "Written Evidence submitted by SCOPE", March 2011; Submission to the House of Commons Home Affairs Committee inquiry into the "Equalities agenda of the Government", Equanomics UK: 11 March 2011 ("Equanomics UK Submissions"). Back

81   See in particular the Equanomics UK Submissions at paragraphs 4-8. Back

82   See in particular R(Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] I.C.R. 1234 at paragraphs 36-40. Back

83   See Equality Strategy, p.9 Back

84   See s.40 EA 2010. Back

85   See for example Article 13 of the Race Directive (Council Directive 2000/43/EC) and Article 12 of the Gender Goods and Services Directive (Council Directive2004/113/EC).

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