Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


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.htmlBack

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.htmBack

16   The Equalities Review, Fairness and Freedom: The Final Report of the Equalities Review, 2007. Back

17   Discrimination Law Review, op. citBack

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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Prepared 12 November 2009