11. ADVANCEMENT OF EQUALITY
Public Sector Equality Duty
GENERAL PROVISIONS
259. Clause 145(1) imposes a single public sector
equality duty upon public authorities and those performing public
functions. It requires public authorities in the exercise of their
functions to have "due regard" to the need to (i) eliminate
discrimination, harassment, victimisation and other prohibited
conduct; (ii) advance equality of opportunity between persons
who "share a relevant protected characteristic and persons
who do not share it", and (iii) foster good relations between
persons who share a relevant protected characteristic and persons
who do not.
260. Clause 145(3) provides that in giving effect
to this duty, public authorities must give due regard to the need
to:
(a) remove or minimise disadvantages suffered
by persons who share a relevant protected characteristic that
are connected to that characteristic;
(b) meet the needs of persons who share a relevant
protected characteristic that are different from the needs of
persons who do not share it;
(c) encourage persons who share a relevant protected
characteristic to participate in public life or in any other activity
in which participation by such persons is disproportionately low.
261. Clause 145(4) provides that promoting good
relations involves having due regard to tackling prejudice and
"promot[ing] understanding".
262. This duty replaces the existing single-ground
positive equality duties for race, disability and gender, and
imposes a similar combined duty which also covers age, gender
reassignment, pregnancy and maternity, marriage and civil partnership,
religion or belief and sexual orientation. It is intended to ensure
that those performing public functions adopt a proactive approach
to eliminating discrimination and promoting equality of opportunity
and good relations between different groups.
263. We welcome the new public sector equality
duty and consider it to be an important vehicle for protecting
the rights of individuals to equal treatment. We also welcome
the clarification in Clause 145(3) of the concept of "due
regard", while noting that the duty could have been strengthened
and clarified by the replacement of "due regard" with
an obligation to take "such steps as are necessary and proportionate
for the progressive realisation of equality."[332]
264. There has been considerable support for
the introduction of the new public sector equality duty from across
the political spectrum, as well as from the EHRC, the Equality
and Diversity Forum, the TUC and other non-governmental organisations.[333]
However, strong concerns have been expressed by Southall Black
Sisters, Women Against Fundamentalism, the British Humanist Association
and other organisations about the extension of the positive duty
to also include religion or belief.[334]
The focus of this concern is on the second limb of the duty (the
requirement to give due regard to the need to "advance equality
of opportunity"), and how it might be applied and interpreted
in the context of religion and belief, given that Clause 145(3)(b)
requires those subject to the duty to give due regard to meeting
the "needs of persons who share a relevant protected characteristic
that are different from the needs of persons who do not share
it". This could potentially be interpreted by public authorities
and those performing public functions as requiring them to make
special and separate provision for religious groups, to meet their
specific "needs". It could therefore open the door for
particular religious organisations to put sustained pressure on
public authorities to provide faith-specific services and result
in a "balkanisation" of public service provision on
religious or belief lines. The fear has also been expressed that
public authorities will interpret the duty as requiring them to
maintain close links with the leadership of faith-based communities,
while the needs of those within those communities that have no
religion, or who face discrimination because of prejudice linked
to religious belief (in particular women, transsexual persons
and individuals with a non-heterosexual sexual orientation), or
who are part of a minority within wider faith communities may
be ignored or overlooked.[335]
265. In their written evidence to the PBC, the
EHRC stated that this fear is:
… unfounded, as the duty is designed to
protect people from discrimination on the grounds of religion
and belief. There is no requirement on public sector organisations
to promote particular religions or belief systems and in fact
doing so may run counter to the duty.[336]
266. In their written evidence to us, the Government
have adopted a similar view:
The duty is aimed at helping individuals, not
groups or organisations - so there will be no requirement for
public authorities to advance equality for religious organisations.
Public authorities should consider whether adherents of particular
religions have different needs when it comes to accessing public
services that could be contributing to adverse outcomes, for instance
in health or education. They should think about whether individuals
are experiencing disadvantage linked to their religious beliefs;
and they should think about whether adherents of particular religions
are underrepresented in particular spheres, including in public
life. If there is evidence of need, then it is right that public
authorities should think about whether there is any action they
could or should take to tackle that.
… the Duty is not designed to encourage
the provision of separate services to different groups, unless
the evidence points to a particular need in that area. The Government
expects it to result in more inclusive services which meet the
needs of all.
… the Government discussed further, and
with religion or belief groups in particular, but also women's
groups, other stakeholders, and public authorities, whether to
apply the "advancing equality of opportunity" limb to
religion or belief. The Government believes it is right to extend
the Duty in this way, to help address the adverse outcomes some
people experience as a result of their religious beliefs; and
because a failure to extend the Duty would have resulted in a
hierarchy of inequality in the Duty.[337]
267. In our view, the High Court in R (on
the application of Kaur and Shah) v London Borough of Ealing
provided an authoritative interpretation of the existing race
equality duty that should be regarded as applicable to the new
wider public sector equality duty.[338]
Its focus should be on protecting individuals against discrimination,
promoting good relations between different groups and ensuring
that the needs of individuals and groups who face disadvantage
are taken into account, with a view to ensuring that all individuals
enjoy the right to equality and human dignity and are afforded
equality of opportunity as full members of society.
268. We consider that the Government is correct
when it suggests that the duty imposes no requirement "for
public authorities to advance equality for religious organisations"
and is "not designed to encourage the provision of separate
services to different groups". The positive duty as set out
in Clause 145 is clearly focused on the elimination of disadvantage
and advancing equality of opportunity for all people as full equals
within society. The separate provision of public services to particular
groups may result in differential levels of service provision
which could discriminate against individuals and minority groups
contrary to Article 14 ECHR, Article 26 ICCPR and other human
rights instruments. International human rights law treats segregation
as an unjustified form of discrimination.[339]
In addition, the duty extends to other protected characteristics
apart from religion and belief and also requires public authorities
to promote good relations between groups, which separate provision
may endanger. As a result, we consider that the duty as set out
in Clause 145 should only require separate provision when it can
be objectively justified as proportionate and necessary to eliminate
disadvantage or to advance equal opportunity.[340]
269. However, we remain concerned that the
duty may be understood by public authorities as requiring separate
provision to be made for the "needs" of faith communities,
even in the absence of a pressing justification for such separate
provision. The absence of a purpose clause means that the main
thrust of the Bill taken as a whole and of the positive duty in
particular may be misunderstood or misinterpreted. We recommend
that Clause 145 be amended to clarify the nature of a public authority's
obligations under the duty with regards to religion or belief.
Clear guidance from the EHRC should also emphasise that public
authorities may be required under the duty to give due regard
to ensuring that individuals from different faith communities
have equal access to common public services, but not to provide
separate services for each different faith group. For example,
a local authority might make provision for limited women-only
visiting hours in its swimming pools, to ensure that women from
certain faith communities have an opportunity to access a public
service open to all that would otherwise be inaccessible to them.
Alternatively, a local authority might provide support to a community
group working mainly within particular faith communities to assist
individuals to overcome disadvantage and participate as equals
within society: the authoritative interpretation of the race duty
given in Kaur v London Borough of Ealing is relevant here.
However, the provision of separate schooling or other public services
for different faith communities would not be required under the
duty and could be seen as incompatible with its requirements.[341]
270. Guidance should also emphasise that the
religion or belief component of the duty is only one element of
the positive duty taken as a whole: measures taken to promote
equality of opportunity for individuals who face disadvantages
linked to their religion or belief should be linked to measures
linked to the elimination of any disadvantages that they face
that are related to their gender, sexual orientation, gender reassignment,
ethnicity and other protected characteristics.
271. Clause 145(5) makes clear that complying
with the duty might mean treating some people more favourably
than others, where doing so is allowed by the Bill. As the Explanatory
Notes make clear, this can include treating disabled people more
favourably than non-disabled people and making reasonable adjustments
for them, making use of
exceptions which permit different treatment, and using the positive
action provisions.[342]
However, the Disability Charities Consortium suggest that this
clause needs to be strengthened to make it clear that giving effect
to the duty may require public authorities to treat disabled
persons more favourably.[343]
We consider that Clause 145 should be amended to make express
reference to the "need to take steps to take account of disabled
persons' disabilities, even where that involves treating disabled
persons more favourably than other persons", as is currently
required by section 49A of the Disability Discrimination Act.
The specific nature of disability as a protected characteristic
should be recognised in this context.
272. The "advancing equality of opportunity"
and "promoting good relations" limbs of the duty do
not apply to the protected characteristic of marriage and civil
partnership. The Government told us that there was a lack of:
… evidence of disadvantage suffered by married
people/people in civil partnerships … any such disadvantage
that may exist could be better dealt with through the other strands…
it could unhelpfully distract public authorities from tackling
other, long-standing, inequalities.[344]
273. Schedule 18 to the Bill sets out further
exceptions to the duty. Schedule 18(1) provides that the duty
does not apply in relation to age in respect of functions relating
to school education and children's homes. As discussed above,
we consider that this exception should be deleted.[345]
It is important that the rights of children to be free
from discrimination and unequal treatment, as recognised by the
UN Convention on the Rights of the Child, are protected and that
public authorities give due regard as to how to exercise their
public functions with this objective in mind. The scheme of the
public sector equality duty is, in our view, sufficiently flexible
to ensure that public authorities will still be able to treat
children differently or make special provision for children of
particular ages when this is justified.
274. Schedule 18(2) provides that the promotion
of equality of opportunity limb of the duty does not apply to
immigration functions in respect of the protected characteristics
of age, race, religion or belief. The Government suggested to
us that this exception existed on the basis that the nature of
immigration controls precludes the promotion of equality of opportunity
on these grounds.[346]
We are concerned by the width of this exemption and consider
that a strong case exists for its deletion, given that the duty
will not preclude immigration authorities applying the immigration
controls set out in law.
275. Schedule 18(5) permits a Minister of the
Crown by order to add, vary or omit an exception to section 145.
We are concerned by the breadth of this power to alter the
scope of the duty. Given that the positive duty is an important
vehicle for promoting human rights, we consider that any alterations
to its scope should be made via primary legislation.
THE DEFINITION OF PUBLIC AUTHORITIES
& BODIES PERFORMING A PUBLIC FUNCTION
276. By virtue of Clause 145(2), the public sector
equality duty applies to public authorities and to bodies which
are not public authorities but which exercise public functions.[347]
Clause 146 provides that the bodies that are defined as "public
authorities" for the purposes of the duty are those listed
in Schedule 19 of the Bill: additional bodies can be added to
the list in Schedule 19 by Ministerial order (including Scottish
and Welsh Ministers as appropriate) by virtue of Clause 147. These
listed bodies are subject to the duty in respect of all of their
functions, except where the Schedule provides that they are only
subject to the duty in respect of certain of their functions.
The extent to which bodies which are not listed public authorities
will be subject to the duty depends on whether they are performing
public functions. "Public function" is defined by reference
to the HRA.[348]
277. In other words, the duty will apply to bodies
listed in Schedule 19 of the Bill and to any other bodies which
satisfy the section 6 HRA "public function" test. We
consider that the "belt and braces" approach to specifying
which bodies are subject to the duty provides more clarity than
would reliance upon the section 6 HRA test alone. However, Schedule
19 contains some important omissions and it is likely that it
will often be necessary to fall back on the HRA test to determine
who is subject to the duty. In our view, the section 6 HRA test
lacks sufficient clarity. Given the importance of the duty, it
is unsatisfactory that the HRA test as currently interpreted by
the courts will be used to define what bodies are subject to the
duty.[349] At
the very least, revising and regularly updating the Schedule 19
list of public authorities would provide greater clarity than
the approach currently adopted in the Bill.
SPECIFIC DUTIES AND PUBLIC PROCUREMENT
278. Clause 151(2) permits Ministers (including
Scottish and Welsh Ministers as appropriate) to impose specific
duties on public authorities as listed in Schedule 19 after consultation
with the EHRC, for the purpose of enabling better performance
of the general duty. The Government is currently consulting on
the scope and content of these duties.[350]
We consider that the specific duties that are imposed should
be outcome-orientated in focus and oblige public authorities to
provide clear, measurable benchmarks which will make it possible
to assess their compliance with its requirements.
279. Clause 151(2) provides that a Minister of
the Crown may impose specific duties on public authorities that
are also "contracting authorities" in relation to their
public procurement functions. The Government has set out how it
intends to ensure the duty is applied in the context of public
procurement as follows:
One specific duty being considered is whether,
as part of a contracting authority's process of setting its equality
objectives and plans for achieving them, the authority will be
required to set out in detail how it will ensure that equality
factors are considered in its procurement activities. The Government
is also considering two further specific duties that will require
contracting authorities to consider the use of equality-related
criteria at award stage, where it is relevant to the subject matter
of the contract; and to consider incorporating equality-related
contract conditions where they relate to the performance of a
contract and are proportionate. The extent to which equality considerations
can be included in the process will depend upon the nature of
the contract, but the duty will ensure it is considered in
the first place.[351]
280. The promotion of equality of opportunity
though public procurement processes has considerable potential
to bring about real change in both the public and private sectors.
We consider that it is important that clear and comprehensive
duties are imposed upon public authorities to build equality of
opportunity considerations into their procurement processes and
to ensure that equality-related contractual terms are inserted
where possible when procurement contracts are concluded.
Positive Action Measures
281. Clause 154 provides that the Bill does not
prohibit the use of positive action measures to alleviate disadvantage
experienced by people who share a protected characteristic, reduce
their under-representation in relation to particular activities,
or to meet their particular needs. However, any such positive
action measures must be a proportionate way of achieving the relevant
aim. In addition, Clause 154(3) provides that regulations may
provide that specific types of measures are not proportionate.
282. Clause 155 permits an employer to take a
protected characteristic into consideration when deciding who
to recruit or promote, where people having the protected characteristic
are at a disadvantage or are under-represented. Clause 155(4)
states that this can be done only a) where the candidates are
equally qualified to be recruited or promoted and b) if the employer
does not have a "policy" of treating people who share
a protected characteristic more favourably than those who do not.
283. These provisions are new, and are intended
to give employers and service providers greater leeway to adopt
positive action measures, if they choose to do so: these provisions
are permissive, not prescriptive. They are also designed
to clarify a very uncertain and confusing area of the law: academic
research has indicated that many private and public sector bodies
have adopted diversity-based recruitment and promotion policies
which may, without conscious intent, contravene the current strict
limits on the use of positive action imposed by existing legislation.[352]
It is planned that comprehensive guidance will be issued by the
EHRC covering use of these positive action provisions if the Bill
becomes law.[353]
284. International human rights standards
appear to view these type of positive action as permissible if
the measures introduced are necessary, proportionate and time-limited.
For example, in its General Comment 18, the Human Rights Committee
(HRC) stated that "[not] every differentiation of treatment
will constitute discrimination, if the criteria for such differentiation
are reasonable and objective and if the aim is to achieve a purpose
which is legitimate under the Covenant".[354]
Article 4(1) of CEDAW and Article 1(4) of CERD make provision
for the use of measures to address continuing disadvantage in
similar terms. The European Court of Human Rights in the Belgian
Linguistics case has adopted a similar interpretation of Article
14 ECHR.[355]
285. We therefore consider that the positive
action provisions of the Bill conform to international human rights
standards. We welcome the provisions as enabling employers and
service providers to make greater use of positive action if they
choose to do so. Well-designed and proportionate positive action
measures can be an effective mechanism for redressing disadvantage,
but existing anti-discrimination law imposes excessive restrictive
constraints on its use.
286. However, we are concerned that the provisions
of Clause 155 impose artificial and potentially unworkable pre-conditions
which unduly limit the ability of employers to make use of positive
action. Clauses 154 and 155 extend the permissible scope of
positive action "to the extent permitted by European law".[356]
However, Clause 155 appears in some respects to impose restrictions
on the use of positive action which are stricter and more uncertain
than the restrictions imposed under European law, which may have
the effect of generating legal uncertainty and deterring employers
making use of any form of positive action. Clause 155 also appears
more permissive in some respects than European law, compounding
the uncertainty of this provision.
287. The case-law of the European Court of Justice
(ECJ) has imposed restrictions on the extent to which positive
action may be used in employment to benefit under-represented
groups. In cases such as Badeck and Abramhamsson v Fogelqvist,
the ECJ has taken the view that giving automatic preference to
female candidates without considering the merits of each individual
application would constitute sex discrimination.[357]
However, the requirement in Clause 155(4) that employers may only
use positive action where candidates are "equally qualified"
appears to fall considerably short of the scope of positive action
permitted by the ECJ in Abramhamsson and the other cases
on positive action. The ECJ states that employers cannot give
automatic preference to employees without assessing the comparative
merits of each individual application: this is not the same as
a requirement that employees must be "equally qualified",
a requirement which may be impossible to prove in many cases and
which will almost certainly deter employers from making use of
the scope for positive action permitted by the legislation. Clause
155(4) appears to have been drafted on the basis of an excessively
restrictive interpretation of European law.[358]
We therefore recommend that the requirement that employees
be "equally qualified" be deleted from Clause 155(4)
and replaced by wording which more accurately reflects the approach
adopted in the case-law of the European Court of Justice. If this
requirement is retained, it may prove very difficult to comply
with in practice and deter employers from making use of positive
action measures.
288. In addition, Clause 155(4)(b) states that
employers must not have a "policy of treating persons who
share the protected characteristic more favourably in connection
with recruitment or promotion than persons who do not share it".
This would appear to prevent employers having any fixed policy
of adopting positive action measures. As a result, it is very
unclear as to when employers will ever be able to make use of
positive action, given that such measures will only be fair, justifiable
and effective if introduced as part of coherent recruitment or
promotion policies rather than used in one-off individual ad
hoc decisions.[359]
Again, this wording seems to be based upon a misunderstanding
of the approach adopted by the ECJ, which prohibits a system of
automatic preference that does not make room for an assessment
of the merits of each individual candidate.[360]
We therefore recommend that the requirement that employers
must not have a "policy of treating persons who share a protected
characteristic more favourably … than persons who do not
share it" should also be deleted, and replaced with statutory
wording that more closely reflects the case-law of the ECJ.
289. The test set out in Clause 155 is also problematic,
in that it does not contain a requirement that the use of positive
action has to be a proportionate measure to achieve the legitimate
aim of redressing disadvantage. In its case-law, the ECJ has required
positive action measures to satisfy the proportionality test,
an approach reflected in international human rights law.[361]
The current wording of Clause 155 does not reflect this requirement,
which may generate uncertainty for both employers and courts and
tribunals. We recommend that a proportionality test be inserted
into Clause 155 to better reflect the current case-law of the
ECJ.
290. Provisions of recent EC legislation may
adopt a more permissive approach to the use of positive action
than thus far adopted by the ECJ in its case-law: for example,
the Framework Equality Directive provides that "with a view
to ensuring full equality in practice, the principle of equal
treatment shall not prevent any Member State from maintaining
or adopting specific measures to prevent or compensate for disadvantages
linked to any of the grounds referred to in Article 1".[362]
There is no explicit requirement for a proportionality test set
out here. However, it is in our view sensible for the Bill to
track the current case-law of the ECJ: at present, the wording
of Clause 155, while intended to reflect the position under European
law, does not achieve this aim. Guidance from the EHRC on the
scope of positive action that is permissible under the legislation
may assist employers to make sense of the positive action provisions
of the Bill, but guidance cannot substitute for precise and clear
statutory language, which is our preferred option.
332 See e.g. Fredman, S. and Spencer, S., Delivering
Equality: Towards an Outcome- Focused Positive Duty, Submission
to the Cabinet Office Equality Review and to the Discrimination
Law Review, June 2006. Back
333
See e.g. Ev 131 & 133 Back
334
See e.g. Ev 100 (British Humanist Association) Back
335
See the comments by Dr Evan Harris MP, citing views expressed
by Women Against Fundamentalism and Southall Black Sisters, PBC
Deb, 30 June 2009, cols 567-568. Back
336
EHRC, Submission to the Equality Bill Committee (E18), May 2009,
para. 8. Back
337
Ev 67 at Q 64 Back
338
[2008] EWHC 2062 (Admin) (29 July 2008). Back
339
See, for example, Article 3 CERD and the judgment of the European
Court of Human Rights in DH v Czech Republic [2007] ECHR
922. Back
340
Separate provision should be distinguished from positive action
or other special measures designed to help individuals and groups
overcome disadvantage and participate as full equals with others
in society as a whole. It should also be distinguished from reasonable
accommodation and other measures designed to enable disabled persons
to enjoy full and equal access to employment, education and other
areas of social participation, or special measures designed to
help other disadvantaged groups. Separate provision entails maintaining
different and distinct forms of service provision for different
groups: the other types of measures assist individuals to overcome
obstacles that prevent them participating as equals in society. Back
341
Amendment NC13, tabled by Lynne Featherstone MP and Dr Evan Harris
MP, would limit the scope of the public sector equality duty by
providing that a) nothing in the duty requires a public authority
in exercising its functions to restrict lawful free expression,
b) requiring public authorities in applying the duty to have regard
to the 'principle of inclusiveness' as defined, and c) in relation
to religion or belief, in applying a duty a public authority shall
have regard only to those needs which are reasonable. Back
342
EN, para. 470. Back
343
Ev 120 Back
344
Ev 67 at Q 61 Back
345
See paragraph 47 above. Back
346
Ev 67 at Q 31 Back
347
Exceptions exist that cover the performance of legislative, judicial
and prosecutorial functions. The devolved legislative bodies,
the security services and the General Synod of the Church of England
are also exempted from the duty. Back
348
Clause 146(5). Back
349
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
350
Government Equalities Office, Equality Bill: Making it work: Policy
Proposals for specific duties - A consultation, June 2009. Back
351
Ev 67 at Q 65 Back
352
L. Barmes with S. Ashtiany, The Diversity Approach to Achieving
Equality: Potential and Pitfalls (2003) Industrial Law Journal
32(4), 274-296. Back
353
PBC Deb, 30 June 2009, col 601. Back
354
General Comment 18, para. 13 at 28 (1994). Article 4(1) of CEDAW
and Article 1(4) of CERD make provision for the use of measures
to address continuing disadvantage in similar terms. The European
Court of Human Rights in the Belgian Linguistics case has
adopted a similar approach to Article 14 ECHR ((1979-80) 1 EHRR
252 at para. 3). Back
355
(1979-80) 1 EHRR 252. Back
356
EN, para. 505. Back
357
Proceedings for A Review of Legality by Georg Badeck, Case C-158/97
[2001] 2 C.M.L.R. 79; Abrahamsson v. Fogelqvist, Case C-407/98
[2002] I.C.R. 932. Back
358
See L. Barmes, Navigating Multi-Layered Uncertainty: EU, Member
State and Organizational Perspectives on Positive Action, forthcoming
in G. Healy, G. Kirton & M. Noon (eds), Equality, Inequalities
and Diversity - From Global to Local (2010). Back
359
Professor Barmes has described this requirement that employers
cannot have a 'policy' of giving preferential treatment in some
circumstances as 'bizarre'. Ibid. Back
360
Barmes, op. cit. Back
361
See e.g. Case C-476/99, Lommers [2002] ECR I2891,
para. 39. Back
362
2000/78/EC, Article 7(1). Back
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