BILL DRAWN TO THE SPECIAL ATTENTION OF
BOTH HOUSES: EQUALITY BILL
Date introduced to first House
Date introduced to second House
Current Bill Number
Previous Reports
| 27 April 09
Bill 131
None
|
1. INTRODUCTION
Background
1. This is a Government Bill introduced in the
House of Commons on 27 April 2009. The Minister for Women and
Equality, the Rt Hon Harriet Harman QC MP has made a statement
of compatibility under section 19(1)(a) of the Human Rights Act
1998 (HRA). The Bill had its Second Reading on 11 May 2009. It
completed its Committee stage on 7 July 2009.
Evidence and Acknowledgements
2. The Explanatory Notes did not set out the
Government's view of the Bill's human rights compatibility. On
27 April 2009, we received a short summary from the Solicitor-General,
Vera Baird QC MP, of the human rights implications of the Bill's
measures.[1] Following
our request, we received a fuller analysis of the human rights
compatibility of the Bill on 5 May 2009.[2]
We wrote to the Solicitor-General, on 2 June 2009, seeking an
explanation of the Government's view of the human rights compatibility
of a number of specific clauses of the Bill.[3]
We received the Solicitor-General's response on 22 June 2009.[4]
On 24 June, we took oral evidence from the Solicitor-General on
the Bill and from Maria Eagle MP, Minister of State, Government
Equalities Office, on the UK's compliance with the UN Convention
for the Elimination of Discrimination Against Women (CEDAW).[5]
We followed up on points which arose during this evidence session
in correspondence on 30 June[6]
and received the Solicitor-General's reply on 16 July 2009.[7]
We welcome the full and prompt responses provided by the Solicitor-General.
3. Following our recent practice, we published
our correspondence with the Solicitor-General on our website and
invited further submissions on the human rights implications of
the Bill.[8] We publish
the submissions received together with this Report, along with
submissions on the Bill which we received in response to our call
for evidence on the Government's Draft Legislative Programme,
in which the Equality Bill was announced. We are grateful to all
those who sent us evidence. We welcome the engagement of the
public and interested organisations in our legislative scrutiny
work.
4. We have been greatly aided in our scrutiny
of this Bill by our Specialist Adviser Colm O'Cinneide, Reader
in Laws at University College London, and wish to record our particular
thanks to him for his assistance.
Explanatory Notes
5. The Bill adopts a novel format of interweaving
the Clauses with the Explanatory Notes. The Notes provide examples
of situations in which the Clauses might be applied. In our
view, these are useful and make the Bill much more accessible
than it might otherwise have been.
6. As stated above, unusually the Explanatory
Notes contained no human rights analysis, beyond the standard
section 19 compatibility statement. The summary of issues which
we received from the Solicitor-General on 27 April 2009 was deficient
in a number of respects.[9]
Firstly, given the length and complexity of the Bill, the analysis
was surprisingly short. Secondly, it was phrased in very general
terms: it contained no clause by clause analysis and instead included
blanket assertions as to the legitimate aims pursued and the proportionality
of the Bill. Thirdly, a narrow interpretation of human rights
was given, limiting it only to consideration of compatibility
with the European Convention on Human Rights (ECHR) rather than
also including the International Covenant on Civil and Political
Rights (ICCPR), the UN Convention on the Elimination of Racial
Discrimination (CERD), the UN Convention on the Elimination of
Discrimination Against Women (CEDAW), the UN Convention on the
Rights of the Child (UNCRC) and the UN Convention on the Rights
of Persons with Disabilities (CRPD), amongst other human rights
instruments.[10] The
Solicitor-General's subsequent memorandum on the Bill of 5 May
2009, which we understand to be based on the ECHR memorandum prepared
for the Legislation Committee, contains a much more detailed and
helpful analysis of individual clauses in the Bill.[11]
We welcome the Government's provision of a detailed human rights
memorandum based closely on the ECHR memorandum prepared for the
Legislation Committee and we commend this precedent to other Departments
as an example of best practice.
7. Whilst we are disappointed that the Explanatory
Notes to the Bill contained no human rights analysis, the subsequent
submissions we have received from the Solicitor-General have,
together, provided a relatively full account of the Government's
view on the Bill's compatibility with the ECHR. Although we disagree
with some aspects of the Government's analysis, the Government's
submission to us generally identify relevant human rights issues,
apply the correct tests, refer to relevant case-law and briefly
present the Government's reasons for concluding that the provisions
in the Bill are human rights compatible. We reiterate our view
of the importance of detailed human rights analysis within the
Explanatory Notes to Bills to assist all those scrutinising proposed
legislation and urge the Government to ensure that such analysis
is routinely contained within the Explanatory Notes accompanying
Government Bills.
The Effect of the Bill
8. Commentators have expressed concern for some
time that the complexity and patchwork nature of British discrimination
legislation was hindering the effective protection of the right
to equality and freedom from unjustified discrimination.[12]
In 2003, Lord Lester of Herne Hill QC introduced the Equality
Bill 2003 into the House of Lords, which made provision for single,
comprehensive and unified equality legislation.[13]
In 2004, strong support was expressed during the consultation
on the establishment of the Commission for Equality and Human
Rights (now the Equality and Human Rights Commission (EHRC)) for
the introduction of a Single Equality Bill to provide a coherent
legislative framework for the new Commission's work..[14]
9. In February 2005, the Government established
the Discrimination Law Review (DLR) to consider "the opportunities
for creating a clearer and more streamlined equality legislation
framework which produces better outcomes for those who experience
disadvantage …while reflecting better regulation principles".[15]
In parallel to the establishment of the DLR, in February 2005
the then Prime Minister commissioned an independent Equalities
Review, chaired by Trevor Phillips (now Chair of the EHRC), to
examine the causes for persisting inequalities in British society.
The Equalities Review's final report to the Prime Minister was
published in February 2007.[16]
The DLR team undertook a programme of research and consultation
with stakeholders from 2005 to early 2007, with A Framework
for Fairness being published in June 2007.[17]
In February 2006, the Equality Act 2006, which established the
EHRC amongst other things, came into force. In its 2005 general
election manifesto, the Labour Party undertook to introduce a
Single Equality Bill during the course of this Parliament.
10. The main purposes of the Bill, according
to the Government, are:
- To harmonise and simplify the law on discrimination
- To extend coverage of the public sector duty
across all the protected characteristics and unify them into one
single equality duty
- To permit more measures which are designed to
redress under-representation and disadvantage amongst those with
protected characteristics i.e. more positive action
- To reinstate protection along the lines of disability-related
discrimination and extend indirect discrimination to disability
- To extend protection from discrimination against
a person associated with someone who has a protected characteristic
or against a person who is perceived to have a protected characteristic
- To prohibit unjustifiable age discrimination
in the provision of goods, facilities and services for people
aged 18 or over
- To impose a new duty on certain public authorities
to consider socio-economic disadvantage in their strategic decision-making
- To increase the protection on grounds of gender
reassignment so that it is on a par with other protected characteristics
- To provide consistent protection for all protected
characteristics against harassment of an employee by a third party
- To prohibit discrimination and harassment in
private clubs and associations.[18]
11. During the Second Reading debate, the Minister
for Women and Equality, the Rt Hon Harriet Harman QC MP stated:
For us, equality matters because it is right
as a question of principle, and it is necessary as a matter of
practice. It is essential for every individual. Everyone has the
right to be treated fairly, and everyone should enjoy the opportunity
to fulfil their potential. No one should suffer the indignity
of discrimination.
Equality is not just the birthright of every
individual; it is also necessary for the economy: a competitive
economy is one that draws on everyone's talents and abilities
and is not blinkered by prejudice. It is also necessary for society:
a more equal society is more cohesive and at ease with itself
than one marred by prejudice and discrimination.[19]
12. The Government considers the Bill to be compatible
with human rights.
The Right to Equality
13. Equality is a human right. It is set out
in the Universal Declaration on Human Rights (UDHR) (Article 2),
the International Covenant on Civil and Political Rights (ICCPR)
(Article 26) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR) (Article 2(2)). Similarly, Articles
2(e) and 3 of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), Article 2(2) of the Convention
on the Elimination of Racial Discrimination (CERD), Article 2(1)
of the Convention on the Rights of the Child (UNCRC) and Article
4 of the UN Convention on the Rights of Persons With Disabilities
(CRPD) all impose a positive obligation upon signatory states
to take active steps to secure equality and protect individuals
against discrimination. Article 14 of the ECHR provides that the
enjoyment of the rights and freedoms in the Convention 'shall
be secured' without discrimination. It has a narrower scope than
the equality rights set out in the UN instruments[20]
and offers weaker protection, as the right applies only in relation
to other rights in the ECHR, rather than freestanding, as with
the UN instruments. Protocol 12, which the UK has not ratified,
would remedy this failing as it would create a freestanding right
not to be discriminated against. Thomas Hammarberg, the Council
of Europe Commissioner for Human Rights, recently stated that
there should be a shift towards equality, including social justice
as well as status-based equality. He endorsed the Equal Rights
Trust's Declaration on Principles on Equality.[21]
14. In previous Reports, we have recommended
that the Government should ratify Protocol 12 ECHR, and include
it within the rights protected in the HRA, in order to provide
protection in domestic law equivalent to the equality rights which
bind the UK internationally.[22]
The rights enshrined in Protocol 12 are rights
which the Government has accepted through its international commitments
to human rights instruments. These commitments should in our view
be given reality in national law through a free standing right
of non-discrimination. In our view, the Government's refusal
to ratify Protocol 12 is unwarranted, and fails to give sufficient
effect in national law to the UK's international human rights
obligations, especially under the ICCPR. We recommend that it
reconsider its decision.
A Constitutional Guarantee or
Purpose Clause
15. The Equality Bill contains neither a constitutional
guarantee to equality nor a purpose clause, which some witnesses
called for.
16. In our Report A Bill of Rights for the
UK?, we welcomed the fact that the Government was considering
including a right to equality in the Bill of Rights. We stated:
In our view the UK's statutory anti-discrimination
laws are now sufficiently established to be regarded as the foundation,
along with the common law's regard for equality, for a general
free-standing right…. A simply formulated, free-standing
and overarching right to equality in a Bill of Rights would provide
a secure underpinning for an Equality Act, which would contain
the detail required in order to give effect to the underlying
right in different contexts.[23]
17. In its Green Paper on Rights and Responsibilities,
the Government noted its aim to "set out in any Bill of Rights
and Responsibilities an accessible and straightforward statement
of equality to embody its place in UK society" and sought
views on how a statement of equality might be framed.[24]
18. In our letter to the Solicitor-General, we
asked whether consideration had been given to conferring an equivalent
level of constitutional protection to the "free-standing"
right to equality and non-discrimination as is conferred on the
rights contained in the ECHR by the Human Rights Act 1998 (HRA).[25]
The Solicitor-General replied that Ministers already have to make
a statement of a Bill's compatibility with Convention rights (section
19 HRA 1998). She referred to the Green Paper on Rights and
Responsibilities and suggested that further consideration
needs to be given to the issue as part of the Government's broader
work on developing the UK's constitutional framework, but not
as part of the Equality Bill. She noted that this was a complex
area and that the Government wanted to avoid unintended consequences
(especially for specific provisions in the discrimination legislation
and to ensure compatibility with EU legislation).[26]
19. A number of organisations, including the
EHRC, have suggested that the Bill should contain a constitutional
guarantee of equality. The EHRC suggested that the Bill provides
a unique opportunity to do so, noting that the Government has
said that any Bill of Rights would not be brought forward until
after the next election, no Bill of Rights may result, or its
level of protection may be insufficient.[27]
20. In the PBC, Lynne Featherstone MP proposed
a number of new clauses to "deliver an equality guarantee
to ensure that the right to equality has the same status as other
human rights".[28]
She explained:
While the Bill addresses the harms that might
be done by discriminating against specific groups or individuals
belonging to those groups … it does not give an overarching
guarantee to every individual to have freedom from discrimination.[29]
21. Describing them as a "polyfilla equality
guarantee",[30]
the Solicitor-General responded by stating:
The Government are considering a statement of
equality as part of the consultation on the Green Paper [on a
Bill of Rights and Responsibilities] … It would be [a] constitutional
principle ... This specific, strand-based, discrimination-oriented
Bill is not the place to deal with constitutional principles of
that kind.[31]
22. A linked issue of the possibility of including
a purpose clause within the Equality Bill was discussed in the
Discrimination Law Review (DLR).[32]
The consultation paper also noted that "purpose clauses are
not common in British legislation and some argue that they risk
causing confusion about the meaning of the substantive provisions
setting out specific and carefully defined rights and obligations".[33]
However, some respondents to the DLR, in particular the former
equality commissions, strongly argued that the insertion of a
purpose clause into single equality legislation could clarify
the meaning of the legislation and give guidance about its underlying
principles, aims and objectives.[34]
The Equality and Human Rights Commission has also pressed for
the inclusion of a purpose clause within the Bill.[35]
23. In her evidence to us, the Solicitor-General
said:
[The Government] does not believe that a purpose
clause in this Bill would make it clearer. In fact, it could quite
easily have the opposite effect.
As a general rule, purpose clauses tend to be
unwise. Statements of fundamental principle or purpose are necessarily
imprecise and inflexible, and inevitably risk making the law uncertain
and confusing. Users with competing views and aims will ask the
courts to construe the principles in different ways, and there
is no reliable way of predicting or controlling the construction
or ensuring that it matches the original legislative intention…
The Bill is aimed at simplifying and clarifying
the law. Whatever the good intentions of those who advocate a
purpose clause, including one in the Bill would therefore run
the risk of undercutting many of the Bill's benefits by introducing
uncertainty, and making it far more difficult to apply on the
ground. That uncertainty would inevitably lead to litigation,
which would be unlikely to be resolved at first instance and could
well lead to unexpected or undesired results. This is because
there would be an inevitable tension between the general propositions
in the purpose clause and the specific provisions of the substantive
parts of the Bill.[36]
24. The Solicitor-General also noted that the
Bill would need to be interpreted compatibly with ECHR rights
and with European law and, in the Government's view, it was "difficult
to see what additional help a further layer of interpretative
principles would give to the courts".[37]
25. We accept that the objectives of a constitutional
guarantee to equality and a purpose clause are not identical,
but they go to the same goal of ensuring respect for equality.
We call on the Government to use the Equality Bill or the Constitutional
Reform and Governance Bill to enshrine a freestanding constitutional
right to equality, consistent with its international obligations
under Article 26 of the ICCPR, amongst other human rights instruments.
As we state on a number of occasions in specific sections of our
Report, at the very least, problems of interpretation may arise
which could be potentially alleviated by the inclusion within
the Bill of a constitutional guarantee or purpose clause. On the
level of the bigger picture, a purpose clause would allow the
Bill to spell out the vision for equality which the Bill aspires
to promote and protect. However, as we noted in our Bill of
Rights Report, we also welcome the fact that the Government
is considering the inclusion of a constitutional guarantee within
its consultation on a Bill of Rights and Responsibilities and
look forward to the outcome of its consultation with interest.
Significant Human Rights Issues
26. There are a number of significant human rights
issues that arise in the context of this Bill. In addition, the
Bill contains a number of measures which we highlight below and
which potentially enhance human rights.
1 Ev 18 Back
2
Ev 22 Back
3
Ev 58 Back
4
Ev 67 Back
5
Ev 1-17 Back
6
Ev 92 Back
7
Ev 93 Back
8
Press Notice No. 10, 28 January 2009. Back
9
Ev 18 Back
10
See below "Human right to equality". Back
11
Ev 22 Back
12
In 2000, the Independent Review of the Enforcement of UK Anti-Discrimination
Legislation (the "Hepple Report") recommended the enactment
of comprehensive equality legislation to level up levels of protection
across the different equality grounds, and to ensure greater clarity
and consistency in anti-discrimination law. See B. Hepple, M.
Coussey and T. Choudhury, Equality: A New Framework, Report of
the Independent Review of the Enforcement of UK Anti-Discrimination
Legislation (Oxford: Hart, 2000). Back
13
The Bill passed successfully through the House of Lords and received
considerable support via an Early Day Motion in the House of Commons,
but did not receive time for a Second Reading. For the text of
this Bill, see http://www.odysseustrust.org/equality.html. Back
14
Discrimination Law Review: A Framework for Fairness: Proposals
for a Single Equality Bill for Great Britain, Communities and
Local Government, June 2007, ("Discrimination Law Review"),
p. 11. Back
15
For the Review's terms of reference, see the website of the Women
and Equality Unit, http://www.womenandequalityunit.gov.uk/dlr/terms_of_ref.htm. Back
16
The Equalities Review, Fairness and Freedom: The Final Report
of the Equalities Review, 2007. Back
17
Discrimination Law Review, op. cit. Back
18
Ev 22, para. 4 Back
19
HC Deb, 11 May 2009, col 553. Back
20
See also provisions of the ILO Discrimination (Employment and
Occupation) Convention (No. 111), which has also been signed and
ratified by the UK. Back
21
Thomas Hammarberg, Viewpoint: The response to the economic crisis
should lead to more equality, 11 May 2009.See also Equal Rights
Trust (www.equalrightstrust.org). Back
22
Twenty-first Report of Session 2003-04, The International Covenant
on Economic, Social and Cultural Rights, HL Paper 183, HC 1188,
para.113; Fourteenth Report of Session 2004-05, The Convention
on the Elimination of Racial Discrimination, HL Paper 88, HC 471;
Sixth Report of Session 2002-03, The Case for a Human Rights Commission,
HL Paper 67-I, HC 489; Seventeenth Report of Session 2004-05,
Review of International Human Rights Instruments, HL Paper 99,
HC 264, paras 29-34. Back
23
Twenty-Ninth Report of Session 2007-08, A Bill of Rights for
the UK?, HL Paper 165, HC 150. Back
24
Ministry of Justice, Rights and Responsibilities: Developing
our Constitutional Framework, Cm 7577, March 2009, para. 3.38. Back
25
Ev 58 Back
26
Ev 67 at Q 20 Back
27
Ev 132; PBC Deb, 2 June 2009, col 13. Back
28
PBC Deb, 7 July 2009, col 708. Back
29
PBC Deb, 7 July 2009, col 708. See also amendments tabled for
Report stage (NC 11 (right to equality), NC12 (interpretation
of legislation), NC 13 (declaration of incompatibility), NC 14
(public authorities), NC 15 (statements of compatibility), NC
16 (proceedings) and NC 17 (power to take remedial action)). Back
30
PBC Deb, 7 July 2009, col 728. Back
31
PBC Deb, 7 July 2009, col 726. Back
32
Discrimination Law Review, op. cit. Back
33
Ibid., para. 9. Back
34
The Equality Bill introduced by Lord Lester of Herne Hill QC
in 2003 contained a purpose clause, as was also recommended by
the Hepple Report in 2000. Back
35
PBC Deb, 2 June 2009, col 12. Back
36
Ev 67 at Q 73 Back
37
Ev 67 at Q 73 Back
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