Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


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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