The Equality Bill is one of the most significant human rights measures introduced into Parliament in recent years. It harmonises and simplifies discrimination law and also introduces a number of new measures, including a single equality duty on the public sector, extended protection from discrimination in a number of areas, and a new duty on certain public authorities to consider socio-economic disadvantage in their strategic decision making.
We welcome the introduction of the Equality Bill and wish it well in its passage through Parliament. Many of the measures it contains will enhance the protection of human rights in the UK. Our Report follows the layout of the Bill and raises a number of detailed issues, which are summarised thematically below.
We consider that the new duty on certain public authorities to have due regard to the desirability of making strategic decisions in a way designed to reduce inequalities of socio-economic outcome has the power to enhance human rights for individuals. We are disappointed that the Government has chosen to exclude people subject to immigration control from the scope of the new duty. We recommend that public authorities should be required to explain what steps they have taken to comply with the duty, so that they can be effectively held to account.
We welcome the extended protection against age discrimination proposed in the Bill but would prefer the exceptions to be set out in primary legislation, not left to secondary legislation. The Government proposes that the prohibition on age discrimination should apply only to those aged over 18: we do not agree and we also consider that the public sector equality duty should apply to how children are treated in schools and children's homes.
There are strong arguments for adopting a definition of disability which is more in tune with the "social model" of disability set out in the UN Convention on the Rights of Persons with Disabilities, rather than one based on medical conditions. In our view there is little risk of this change leading to abuse or trivialisation of the status of being disabled. The reference to "long term" impairment should be omitted from the current definition of disability.
We welcome the provisions of the Bill which clarify and extend protection against discrimination related to disability in the light of the Malcolm decision and are also pleased to note the Government's willingness to address detailed concerns about the wording of the relevant clauses.
It is not possible for a non-disabled person to bring an action challenging more favourable treatment of a disabled person and the Bill seeks to maintain this position. We are concerned that the current wording of Clause 13 is unclear, however, and ask the Government to look again at this provision. We also draw attention to problems with the drafting of Clause 23, which relates to the "comparator requirement" which the courts use to decide if someone has been subjected to less favourable treatment.
The Bill includes a new statutory "knowledge requirement" which provides that discrimination arising from disability does not apply if the employer or service provider can show that they did not know, or could not reasonably have been expected to know, that the person concerned had a disability. A strong case exists for providing that this requirement will be deemed to be satisfied where the person was not asked by the employer or service provider if they suffered from a disability when it was reasonable to do so.
We also conclude that serious consideration should be given to limiting the use of pre-employment health questionnaires.
We consider that a strong case exists for the term "gender identity" to replace "gender reassignment" as a protected characteristic under the Bill, to offer wider protection for transsexual people.
We consider that good arguments exist to prohibit discrimination against individuals on the basis that they are not married or in a civil partnership; and for the prohibition of discrimination against married people or people in civil partnerships to be extended to cover harassment, discrimination in the provision of goods and services, premises, education and membership of associations.
Whilst we welcome the protection for carers under the Bill we recommend that the Government should go further and, in particular, give serious consideration to introducing a form of reasonable accommodation duty on employers where appropriate.
Whilst we welcome the widening of protection from discrimination to a combination of two grounds we are concerned that this applies only to direct discrimination and excludes maternity, pregnancy, marriage and civil partnership.
We consider that strong arguments exist for prohibiting harassment on the grounds of being married or in a civil partnership, as well as on the grounds of maternity or pregnancy. We are also concerned by the absence of explicit provisions on harassment on the basis of sexual orientation. In our view, a precise and narrow definition of harassment on the grounds of sexual orientation should be applied to reduce the risk of incompatibility with the rights to freedom of expression and freedom of religion and belief.
Services and public functions
Part 3 of the Bill relates to the supply of services and the performance of public functions. We again draw attention to the unclear and inadequate scope of the Human Rights Act 1998, following a number of recent legal decisions, which may have a limiting effect on the number of bodies subject to the positive equality duty.
There are various exceptions to the prohibition on discrimination in this area. We disagree with those relating to disability and ethnicity and nationality. We conclude that the exception which would enable someone to be refused entry to the UK on the basis of their religion or belief, if to do so would be conducive to the public good, is unnecessary and undesirable.
Public sector equality duty
We welcome the new public sector equality duty. The Government has stated that the duty is not designed to encourage the provision of separate services to different groups. We welcome this but remain concerned that the duty may be understood by public authorities as requiring separate provision to be made for the "needs" of faith communities. This should be dealt with by amending Clause 145 to clarify the nature of a public authority's obligations in this area and by guidance.
We consider that the positive action provisions of the Bill conform to international human rights standards but we are concerned that Clause 155 imposes artificial and potentially unworkable pre-conditions which unduly limit the ability of employers to make use of positive action. We recommend a number of amendments.
We welcome the clarification of the circumstances in which occupational requirements linked to a religious belief or ethos can be imposed by faith-based organisations or organised religious groups. We doubt whether this provision can be used to impose wide-ranging requirements on employees and also consider that the public sector equality duty can play a part in ensuring that organisations in receipt of public funds do not discriminate unduly on the grounds of religion or belief.
We reiterate an earlier recommendation that the exemption of the armed forces from the scope of the disability provisions in the Bill is unnecessary and incompatible with the UN Convention on the Rights of Persons with Disabilities.
We call for the abolition of the default retirement age in its current form.
Although we welcome clarification of equal pay law, we consider that more could be done to modernise an increasingly outmoded legal framework. Equal pay provisions could have benefited from the establishment of new arbitration mechanisms, the introduction of positive duties on employers in certain circumstances to monitor and respond to patterns of pay inequality, and the use of hypothetical comparators in all equal pay claims. We recommend that the protection against victimisation of employees who discuss their pay with colleagues should be extended and we also have detailed comments about Clauses 61 and 66.
We are not persuaded that it is justifiable to exclude discrimination on the grounds of pregnancy and maternity from the scope of the Bill's protections relating to education in schools. We draw attention to the issue of school admissions, which is currently the subject of a case before the Supreme Court. We have concerns about exceptions from discrimination provisions relating to the curriculum and school transport and again conclude that children of sufficient age and maturity should have the right to withdraw from collective worship and religious education classes.
We consider that provisions relating to membership of clubs and associations strike an appropriate balance between the right to freedom of association and the right to non-discrimination and equality. We welcome steps to enable political parties to undertake a wider range of positive action to address under-representation.
We consider that existing restrictions on the employment of non-UK nationals in the public service should be reviewed. We doubt whether sections of the School Standards and Framework Act 1998 relating to the appointment and dismissal of teachers in faith schools comply with EU law. We are concerned at the scope of the natural security exceptions and draw attention to complex issues relating to the position of charities.