Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


4.  SERVICES AND PUBLIC FUNCTIONS

139.  The provisions of Part 3 of the Bill prohibit discrimination, harassment and victimisation in the supply of services (which include goods and facilities) and the performance of public functions. In the main, this Part codifies existing anti-discrimination legislation. However, the provisions of the Bill taken as a whole have the effect of extending and harmonising protection against discrimination in the provision of goods and services and in the performance of public functions in several important areas. For example, Clause 28(7) of the Bill taken with Schedule 2 strengthens and clarifies the duty to make reasonable accommodation for disabled persons imposed upon service providers, while Clause 28 taken together with the provisions of Part 2 of the Bill extends protection against age discrimination to the provision of services and the performance of public functions.[190] Part 6 of Schedule 3 of the Bill permits the provision of separate or single-sex services by public and private bodies in certain circumstances, including the provision of religious services, and also permits the provision of services provided generally only for persons sharing a personal characteristic. The Equality Network has expressed concern about the provisions of Schedule 3(25) which provide that transsexual persons can be excluded from separate or single-sex services where this is a proportionate means of achieving a legitimate aim.[191]

140.  We welcome the clarification and extension of protection against discrimination in the area of service delivery and the performance of public functions. We also welcome the provisions of the Bill that permit separate or single-sex services in certain carefully delineated circumstances. We consider that separate provision is not incompatible with human rights standards and may indeed be necessary to ensure compliance with these standards in certain circumstances. For example, the provision of separate services for women may be necessary to ensure respect for the human dignity of older persons and victims of domestic violence. However, we also note the importance of the conditions imposed by Part 6 of Schedule 3 as to when such separate service provision will be lawful. These conditions are an important safeguard against abuse of the possibility of separate service provision and in particular the unjustified exclusion of transsexual persons from single-sex services directed at persons who share their acquired gender.

The Definition of Public Authorities

141.  Clause 28(6) provides that a person "must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation". The provision of services by public authorities which do not constitute the performance of public functions as such must also be free from discrimination, harassment and victimisation: a complex case-law exists setting out the distinction between the provision of services by public authorities and the performance of public functions,[192] but as discrimination is now prohibited in both areas, the significance of this distinction is greatly diluted.

142.  Clause 30(4) provides that the definition of a public function to be applied in this Part of the Act is the "definition of a public function … which applies for the purposes of the Human Rights Act 1998".[193] In written evidence, several groups have criticised the use of the HRA definition of "public functions" in the Bill, suggesting that an alternative definition could be used to provide greater clarity as to what constitutes a "public function".[194]

143.  We reiterate our view that the development of the case-law concerning the interpretation of section 6 of the HRA has left real gaps and inadequacies in human rights protection in the UK.[195] The use of the HRA definition in this Bill to define the scope of public functions ensures that these gaps are carried across into the definition of public functions set out in Clause 30(4). These gaps pose less of a problem in the context of anti-discrimination law than they do under the HRA, as protection against discrimination extends to the provision of goods and services and is not confined to the performance of public functions as defined by section 6 of the HRA. However, the Bill once again draws attention to the definitional problems within the HRA. The inadequate section 6 HRA definition may have a limiting effect on the number of bodies subject to the positive equality duty.

Immigration Exceptions

DISABILITY

144.  Schedule 3(16) provides that the prohibition on discrimination in the provision of services and in the exercise of public functions does not apply to immigration decisions to refuse entry clearance, or to refuse, cancel or vary leave to enter or remain in the UK, if "necessary for the public good".

145.  Liberty and the National Aids Trust have expressed concern about this exception, on the basis that it appears to give immigration authorities wide-ranging powers to discriminate on the basis of disability in denying entry into the UK or denying leave to remain to persons already on national territory. Both organisations argue that this exception is excessively broad and would permit the exclusion of disabled people simply on the grounds of cost or on the basis of general public health considerations, rather than on the basis of a serious threat to public health or safety.[196] Liberty also suggests that this exception is retrogressive as its scope is much wider than the limited exception to the general prohibition on disability discrimination that exists at present in the DDA.[197] Both Liberty and the National AIDS Trust suggest that the exception should either be removed or be considerably narrowed in scope, by confining its applicability to situations where a threat exists to public health or safety (as distinct from a threat to the "public good") and the discriminatory act in question pursued a legitimate aim and could be objectively justified under the standard proportionality test.[198]

146.  The Government says that the exception is "not about allowing the immigration authorities to exclude a person simply because they have a physical or mental impairment" but is "aimed primarily at excluding people who present a risk to public health because they are carrying an infectious disease".[199] In oral evidence, the Solicitor-General also indicated that the Government considers that the exception is necessary to ensure that immigration authorities can give effect to immigration policies with sufficient flexibility to enable them to respond to constantly changing situations.[200] In addition, in the PBC, the Solicitor-General suggested that a proportionality test would be applied by the courts in assessing whether an exclusion was justified as necessary "for the public good", despite the lack of an explicit proportionality requirement on the face of the Bill.[201]

147.  In our Report on the UN Convention on the Rights of Persons with Disabilities, we drew attention to the Government's proposed reservation on immigration control and recommended that it was unnecessary, inconsistent with the object and purpose of the Convention and appeared not to constitute a valid reservation.[202] We consider that the immigration exception as set out in Schedule 3(16) is also inconsistent with the object and purpose of the UN Convention. This exception could permit treatment of disabled persons which could violate their right to equal treatment, as well as potentially threatening other rights such as the right to life protected under Article 2 ECHR and the Article 3 ECHR right to freedom from inhuman and degrading treatment if disabled persons with serious illnesses are denied entry to or leave to remain in the UK and deported back to countries where they may be subject to life-threatening conditions in the absence of a reason to do so under immigration law.

148.  Further, the scope of this exception is excessively wide, in particular in how it exempts all acts done "if necessary for the public good". There is no explicit requirement that any discriminatory acts must be done for a legitimate aim and be objectively justified. The Government's suggestion that a proportionality requirement will be automatically applied by courts in assessing the legality of acts done under the exception appears to be very optimistic: Schedule 3(16) does not make provision for such a test and not every case involving this exception will result in the application of the proportionality requirements applied under the HRA. We accept that the immigration authorities may legitimately wish to exclude people from entering or remaining in the UK in certain specific and limited circumstances, for example if they have certain highly contagious diseases. However, any such decisions must be necessary to protect public health or public safety, must achieve a legitimate aim and be objectively justified in line with the standard proportionality analysis. Consistent with the Solicitor-General's indication in the PBC, we recommend that the Government amend the Bill to make this explicit.

ETHNICITY AND NATIONALITY

149.  Schedule 3(17) provides an exception to the duty not to discriminate in the provision of services or the exercise of a public function on the grounds of a person's ethnic or national origins or nationality, in relation to the exercise of immigration functions. It replicates section 19D Race Relations Act 1976, which allows a Minister to make a specific authorisation covering a particular case or class of case to which this exception will apply.

150.  Liberty have criticised the scope of this exception and the manner in which it permits discrimination on the basis of ethnicity and national origin.[203] The Government has justified the retention of this exception on the basis that:

    [E]ffective casework management may require prioritising claims by reference to nationality or ethnic origin when, for example, it is known that claims from one particular group are relatively straightforward. The race exception allows the immigration authorities to carry out these policies with sufficient flexibility to enable them to respond to constantly changing situations.[204]

151.  At present, no authorisation under the existing exception set out in the Race Relations Act is in place.

152.  We do not consider that the Government has established a case for retaining the ethnicity and nationality immigration exception in its current form. Discrimination on the basis of nationality is an unavoidable feature of immigration control. However, the case-law of the European Court of Human Rights, the House of Lords and other courts have established that pressing justification must be shown for the use of distinctions based on race, ethnicity or associated concepts such as national origin.[205] The provisions of the UN Convention on the Elimination of Racial Discrimination also require states to take steps to avoid the use of race-based distinctions. In our view, the Government has not established the existence of a pressing justification for the continuation in force of this exception insofar as it extends to distinctions based on ethnicity and national origin. The Government has given few examples where the use of ethnicity or national origin would be justified to deal with a pressing problem.[206] Given the range of immigration powers available and the ability of the Government to authorise the use of distinctions based on nationality, we consider that there is insufficient justification for including an exception that permits discrimination based on ethnicity and national origins in the Bill.

RELIGION AND IMMIGRATION

153.  Schedule 3(18) provides that the prohibition on discrimination on the grounds of religion or belief in the provision of services and in the exercise of a public function does not apply to immigration decisions to refuse entry clearance or to refuse or cancel leave to enter or remain in the UK, if the person's exclusion is conducive to the public good or to vary such leave if it is undesirable to permit the person to remain in the UK. This means that a person can be refused entry or expelled from the UK on the basis of their religion or belief if to do so is conducive to the public good.

154.  Liberty questions whether this provision is necessary as the Government may currently exclude people from the UK on the grounds that their presence is not conducive to the public good, for example because their views will stir up hatred which might lead to inter-community violence.[207] In such cases the reason for exclusion is not a person's religion or belief per se but the violence which might result from its expression. In contrast, the exception contained in Schedule 3(18) would permit the Home Office to exclude people from the UK purely on the grounds of their religion or belief.

155.  The Government considers that the exception is necessary:

    … to ensure a proper balance is achieved between the rights of individuals not to be discriminated against and the wider interests of the community such as public safety and national security. This exception would therefore ensure that immigration authorities excluding so-called "preachers of hate" where to do so is conducive to the public good could not be challenged for discrimination because of religion or belief.[208]

156.  We have previously recognised the basis for the religion and immigration exception. However, we have emphasised that the exception should not affect the duty of public authorities exercising immigration functions to comply with the duty of non-discrimination under Article 14 ECHR, where these functions engage the right to manifest religion under Article 9 ECHR, or rights to respect for private or family life under Article 8 ECHR.[209] We also consider that the wide scope of the existing power to exclude persons whose presence in the UK would not be conducive to the public good means that the exception set out in Schedule 3(18) is unnecessary. The case-law of the European Court of Human Rights, the House of Lords and other courts have established that strong justification must be shown for the use of distinctions based on religion or belief.[210] Applying this approach to the Bill, the wide scope of the existing power to exclude persons on the basis of the public good appears to make the inclusion of an exception permitting exclusion solely on the grounds of possession of a religion or belief unnecessary and undesirable. This provision should be removed.

INSURANCE EXCEPTION

157.  Paragraph 20 of Part 5 of Schedule 3 provides an exception from the prohibition of discrimination against disabled people in the provision of services connected with insurance business, where the decision in question is based on relevant and reliable information. This enables insurance providers to offer differential premiums and benefits to disabled people in circumstances where these conditions are satisfied. This re-enacts existing legislation. Paragraph 21 of Part 5 of Schedule 3 also provides for exceptions which allow insurers in certain circumstances and in respect of certain types of insurance product to calculate different premiums and benefits for men and women, or on the basis of factors linked to pregnancy and maternity, or on the basis of gender reassignment, when these premiums and benefits are based upon reasonable actuarial data. These provisions re-enact existing legislation. Paragraph 22 provides for another exception to the effect that insurers will not be considered to have discriminated in relation to any of the protected characteristics listed in paragraph 22(2) if they continue to apply terms of insurance policies which were entered into by the parties concerned before the date on which this paragraph comes into force. Where pre-existing policies are renewed, or have their terms reviewed, on or after the date this paragraph comes into force, this exception will no longer apply. The Explanatory Notes explain that this exception will ensure that existing insurance policies will continue to have "continuing protection for their pricing structure and other aspects of insurance policy which may not meet subsequently altered discrimination law".[211]

158.  We welcome the protection offered by Part 5 of Schedule 3 against discrimination in the provision of insurance services. We consider that the distinction in Schedule 3(21) between the characteristics of sex, pregnancy and maternity and gender reassignment, where the use of reasonable actuarial data is permitted to justify direct discrimination in certain circumstances, and other protected characteristics, where the use of such data cannot justify direct discrimination, is justifiable on the basis that it reflects a genuine social need for gender-aggregated data to be available to insurance providers.

159.  However, we are concerned that the exception set out in Schedule 3(22) in respect of existing insurance policies appears to permit ongoing discrimination on the basis of protected characteristics. No equivalent provision appears to exist in current anti-discrimination legislation, which raises concerns that the principle of non-regression has not been respected. The rationale behind the width of this exception also appears to be unclear, as little or no justification has been offered by the Government as to why such a wide exception is considered to be necessary for existing insurance policies. As a consequence, we consider that the scope of this exception as currently framed raises serious concerns.


190   At present, age discrimination is only prohibited in the field of employment and occupation. Back

191   Ev 140 Back

192   See e.g. Amin v Entry Clearance Officer, Bombay [1983] 2 AC 818; Savjani v Revenue Commissioners [1981] QB 458; Farah v Commissioner of Police of the Metropolis [1998] QB 65. Back

193   EN, para. 118. Back

194   See e.g. Ev 133 & 181 Back

195   Seventh Report of Session 2003-04, The Meaning of Public Authority under the Human Rights Act, HL Paper 39, HC 382; Ninth Report of Session 2006-2007, The Meaning of Public Authority under the Human Rights Act, HL Paper 77, HC 410. Back

196   Ev 149 & 160 Back

197   Ev 149 Back

198   Ev 159 & 160 Back

199   Ev 67 at Q 21 Back

200   Q 48 Back

201   PBC Deb, 18 June 2009, cols 360-361.  Back

202   Twelfth Report of Session 2008-09, UN Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declarations, HL Paper 70, HC 397, paras 58-71. Back

203   Ev 159 Back

204   Ev 67 at Q 21 Back

205   See e.g. D.H. v Czech Republic (App. No. 57325/00, 13 November 2007); R v Secretary of State for the Home Department, ex p. Carson [2005] UKHL 37 per Lord Hoffmann. Back

206   Some examples were given as to where the use of such distinctions might be necessary in the course of the debates on the provisions of the Race Relations (Amendment) Act 2000: see for example the views expressed by Lord Bassam of Brighton on behalf of the Government, HL Deb., 11 January 2000, cols 580-587. Back

207   Ev 159 Back

208   Ev 67 at Q 21 Back

209   Fourth Report of Session 2005-06, Legislative Scrutiny: Equality Bill, HL Paper 89, HC 766, para. 50. Back

210   See e.g. D.H. v Czech Republic (App. No. 57325/00, 13 November 2007; R v Secretary of State for the Home Department, ex p. Carson [2005] UKHL 37 per Lord Hoffmann. Back

211   EN, para. 682. Back


 
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