Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


12.  GENERAL EXCEPTIONS

291.  Part 14 and Schedules 22 and 23 make provision for certain exceptions to the general prohibition of differential treatment on the basis of protected characteristics. Some are not controversial in that they are designed to provide special protection for vulnerable groups and thereby enhance human rights protection, such as the provisions of Schedule 22(2) that permit differential treatment based on sex or pregnancy and maternity in the workplace in order to protect the health and safety of women who are pregnant, who have recently given birth or against risks specific to women. Others give rise to more complex human rights issues.

Statutory Exceptions

292.  Schedule 22(1) provides that forms of discrimination which would be prohibited by the Bill will not be unlawful if permitted or required by other statutory enactments, while Schedule 23(1) also exempts acts done under statutory or regulatory authority. This gives rise to the issue raised above as to whether discrimination law or the right to equality should be given an extra quasi-constitutional level of protection. The effect of the provisions is to ensure that the protection against discrimination provided by the Bill can be overridden or limited by specific statutory provisions, ensuring that it lacks the "constitutional" status of the HRA.[363]

RESTRICTIONS ON FOREIGN NATIONALS IN CROWN EMPLOYMENT

293.  Schedule 22(5) re-enacts existing restrictions on the employment of foreign nationals in the civil, diplomatic, armed or security and intelligence services and by certain public bodies. It also allows restrictions on foreign nationals holding public offices. The Government justified the scope of these restrictions as follows:

    …there still remains a need which is recognised in existing legislation and which the Equality Bill replicates, to reserve certain particularly sensitive posts in the civil, diplomatic, armed or security and intelligence services and by certain public bodies, to persons of particular birth, nationality, descent or residence. This is because the posts are assumed to be of a nature - for example; security and intelligence services - that requires a loyalty or allegiance to the Crown that is presumed to be greater in the case of a person who is a UK national.[364]

294.  The Government also noted that it had taken "a positive step through the European Communities (Employment in the Civil Service) Order 2007, which set out the criteria by which posts can be reserved for UK nationals, to open as many posts to all eligible nationals as was operationally possible rather than maintaining quite as many for UK nationals only".[365] However, the 2007 Order only applied to EU nationals and the extent of the restrictions imposed on non-nationals in general remains controversial.

295.  As the law currently stands, 95% of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals but other non-UK nationals are almost entirely excluded from those posts, even if there is no good operational reason for that.[366] As a result, many members of long-standing minority communities in the UK are entirely banned from Government employment, no matter how well qualified they are, and even if they are married to a UK national. The issue is the subject of a Private Members Bill, the Crown Employment (Nationality) Bill,[367] promoted by Andrew Dismore MP, designed to remove this nationality discrimination to the extent that it cannot be justified by the nature of the post, but a Bill to similar effect has failed to reach the statute book on six previous occasions.

296.  Such nationality discrimination in access to government employment engages a number of the UK's human rights obligations. By Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), for example, the UK recognises the right to work, including the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and by Article 2 ICESCR the UK has undertaken to guarantee the rights in the Covenant without discrimination of any kind as to national origin. The UN Committee on Economic and Social Rights[368] and the UN Committee for the Elimination of Racial Discrimination[369] have both commented on the continuing discrimination faced by ethnic minorities in employment in the UK.

297.  The UK is also a party to an ILO Convention, the Discrimination (Employment and Occupation) Convention 1958,[370] which defines discrimination to include exclusion based on nationality,[371] and by which the UK has undertaken to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof,[372] and in particular has undertaken to pursue that policy in respect of employment under the direct control of a national authority.[373]

298.  We consider that the re-enactment of existing restrictions on the employment of non-UK nationals in the public services represents a missed opportunity to review these restrictions (in particular those that relate to non-EU nationals), to remove those that are no longer justified and to minimise the scope of those that remain, on the basis that derogations from the general principle of equality of treatment should be applied narrowly and clearly shown to be proportionate means of achieving a legitimate aim. Amendments NC27 to 29 and NS1, tabled by Andrew Dismore MP for Report Stage, would amend or remove many of the existing national requirements in Crown employment. We consider that these amendments deserve serious consideration.

RELIGIOUS ORGANISATIONS

299.  The Bill exempts from the prohibition on religious discrimination in employment the discrimination related to employment in faith schools which is permitted by the School Standards and Framework Act 1998.[374] The Explanatory Notes explain that this means, for example, that schools with a religious ethos can restrict employment of certain teachers to applicants that share the same faith.[375] Elsewhere in the Bill, however, an employer with an ethos based on religion or belief is allowed to discriminate in relation to work by applying a requirement to be of a particular religion or belief, but only if, having regard to that ethos, being of that religion or belief is a requirement for the work and applying the requirement is proportionate to achieve a legitimate aim.[376]

300.  Schedule 22(4) re-enacts existing legislation by replicating for the most part the effect of Regulation 39 of the Employment Equality (Religion or Belief) Regulations 2003, which exempts Sections 58-60 of the School Standards and Framework Act 1998 (SSFA) as extended by Section 37 of the Education and Inspection Act 2006 from the anti-discrimination provisions of the Regulations.

301.  Sections 58-60 SSFA deal with the appointment and dismissal of teachers in schools with a religious character and permit schools with a religious ethos to restrict employment of certain teachers to applicants that share the same faith. Under Section 58 SSFA, foundation or Voluntary Controlled ("VC") schools with a religious character are able to select up to one-fifth of teachers on the basis of their competence to give religious education as required in accordance with the school's religious ethos. These teachers are called 'reserved teachers' and their security of employment is dependant upon the opinion of the governors as whether they have delivered religious education in manner that reflects that ethos.[377] All other staff and teachers that are not reserved teachers are protected by the prohibition on discrimination on the grounds of religion or belief. However, all teachers in Voluntary Aided ("VA") schools, who are generally schools of a religious character who obtain their funding directly from government and not from a local education authority (LEA), may be treated as reserved teachers.

302.  Section 60 provides that compliance by a reserved teacher with a school's ethos may be grounds for preference in selection for a reserved teaching post, in addition to the appointment, remuneration or promotion of such teachers. In addition, Section 60(5) provides that not only may the school have regard to a person's faith and worship attendance, but also by virtue of Section 60(5)(b), regard may be had to conduct by the teacher which is incompatible with the precepts or with the upholding of the tenets of the religion. In this way a school is able to discriminate not only on the basis of a person's beliefs but also on their conduct and lifestyle.

303.  These provisions give rise to a number of human rights issues. 'Reserved' teachers are denied protection against religious discrimination by virtue of Schedule 22(4). This constitutes a sweeping denial of protection against discrimination, while in contrast VC and VA schools are not under any obligation to demonstrate that compliance with the religious ethos in question is necessary on the part of the 'reserved' teachers. Article 4(2) of the Framework Equality Directive permits religious organisations to discriminate on the basis of religion to preserve their ethos, but also requires that any difference in treatment must be a genuine, legitimate and justified occupation requirement having regard to the specific organisation's ethos.[378] VCs and VAs are not required under the SSFA to demonstrate that requiring individuals filling 'reserved' posts satisfies this requirement.

304.  In addition, Article 4(2) provides that discrimination to preserve an organisation's ethos must be based on a person's religion or belief and no other protected ground. As a result, there is no exemption in the Employment Equality (Sexual Orientation) Regulations 2003 or in Schedule 22(4) that exempts VCs and VAs from the requirement not to discriminate on the grounds of sexual orientation. However, the provisions of section 60(5) SSFA, in permitting discrimination based on conduct which is incompatible with the precepts or with the upholding of the tenets of the religion, appear to permit VCs and VAs to discriminate not just on the basis of religious faith or belief but also on the basis of conduct. This may go further than is permitted by Article 4(2), although in the absence of case-law on this point, the interpretation of Article 4(2) remains uncertain at the present time.

305.  In addition to the issue of the compatibility of section 60(5) with EU law, serious questions can be asked as to whether discrimination on the basis of conduct or lifestyle, as distinct from a person's religious views, is compatible with the principle of equality and non-discrimination.

306.  We consider that substantial grounds exist for doubting whether sections 58-60 of the School Standards and Framework Act 1998 (SSFA) as currently framed are compatible with the requirements of Article 4(2) of the Framework Equality Directive 2000/78/EC. We also consider that the provisions of section 60(5) SSFA permit Voluntary Controlled and Voluntary Aided Schools to impose wide-ranging requirements upon employees to adhere to religious doctrine in their lifestyles and personal relationships which may go beyond what is permitted under Article 4(2).

307.  Schedule 23(2) re-enacts and clarifies existing legislation which provides an exception for religious or belief organisations with regard to the provisions in the Bill that relate to services and public functions, premises and associations. The types of organisations that can use this exception are those that exist to practice, advance or teach a religion or belief; allow people of a religion or belief to participate in any activity or receive any benefit related to that religion or belief; or promote good relations between people of different religions or beliefs. Such organisations can impose restrictions on the basis of religion or belief or sexual orientation. In contrast, organisations whose main purpose is commercial cannot use this exception.

308.  However, where discrimination in the provision of services, premises and associations is concerned, a significant difference exists between the circumstances in which discrimination is permitted on the basis of religion or belief and when it is permitted on the grounds of sexual orientation. In relation to religion or belief, the exception can only apply where a restriction is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion or belief that the organisation represents. However, in relation to sexual orientation, the exception can only apply where it is necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents. In contrast, if an organisation contracts with a public body to carry out an activity on that body's behalf then it cannot discriminate in any way on grounds of sexual orientation in relation to that activity, while it may do so on grounds of religion or belief. This distinction exists in the current legislation, but is clarified in the Bill.

309.  The Government explained the reasoning behind the inclusion of Schedule 23(2) and the distinctions it makes between the ability of religious organisations to discriminate on the basis of religion or belief and sexual orientation in the following way:

    Religious organisations providing public services are subject to the requirements of discrimination law in the same way as other organisations, save for the limited exceptions designed to ensure that a person's right to hold and manifest a religious belief is not interfered with. These exceptions in the Equality Bill replicate the effect of provisions in Part 2 of the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007.

    The 2007 Regulations contain a 'carve-out' from the religious organisations exception for any organisation acting on behalf of a public authority. This is because, while the Government is sensitive to people's religious beliefs, in circumstances where public money is being used to fund a service the Government takes the view that the service should be provided to people irrespective of their sexual orientation.

    On the other hand, it is recognised that there are organisations whose purpose is to provide benefits to people of particular religions. These can provide valuable services to particular sections of the community. Accordingly, the Government does not consider that a similar provision is necessary in relation to religion or belief. This does not affect the general position that public authorities should not discriminate in relation to any of the protected characteristics in the services they provide or the functions they exercise.[379]

310.  The British Humanist Association (BHA), however, criticises the scope for discrimination on the basis of religion or belief permitted under Schedule 23(2). It argues that religious organisations should not be permitted to discriminate on the basis of sexual orientation or religion belief when providing services a) on behalf of a public authority, and b) under the terms of a contract between the organisation and the public authority.[380]

311.  We accept that some exemption from the Regulations is necessary in order to protect the right to freedom of conscience, religion and belief in Article 9 ECHR. However, as we have previously indicated, we consider that there is nothing in Article 9 ECHR, or any other human rights standards, that requires an exemption to be provided to permit religious organisations to discriminate on grounds of sexual orientation when delivering services on behalf of a public authority. Such an exemption would provide protection not for the holding of a religious belief but for the manifestation of that belief: where such manifestation of a belief conflicts with the right of gay people not to be discriminated against in their access to public services, it is necessary and justifiable to limit the right to manifest the belief.[381] Therefore, we welcome the re-enactment and clarification of the existing provisions in Schedule 23(2) that concern discrimination on the basis of sexual orientation.

312.  The position in respect of discrimination on grounds of religion or belief is more complex. As the Government suggests, there are organisations whose purpose is to provide benefits to people of particular religions who play an important role in delivering public services, such as the delivery of kosher meals by Jewish charities or the provision of certain forms of pastoral and care services by religious organisations to prisoners, older people and others of their faith. The delivery of such public services is often dependant on religious organisations being able to confine delivery of these specialist services to those of a particular faith or belief. Schedule 3(27) sets out an exception for services which are "generally provided only for persons who share a protected characteristic", which permits those who deliver the service to refuse to provide it to people who do not share this characteristic. This would appear to cover many but perhaps not all of the instances which the exception set out in Schedule 23(2) is designed to cover.

313.  The exception permitting discrimination on the basis of religion or belief in the delivery of public services by religious organisations must be objectively justified as necessary to ensure the effective delivery of these services in certain circumstances. However, to be compatible with human rights standards, this exception must be given a restricted interpretation and applied with reference to Article 14 ECHR and the rights of users of public services to access them without being subject to unjustified discrimination. We can think of few instances where the exception will apply in practice.

314.  In addition, we highlight the importance of the public sector equality duty in this context, which requires public authorities and those performing public functions to advance equality of opportunity for all. The Government has also drawn attention to the role the public duty will play in this context:

    The point remains, however, that the public authority (on whom the Duty falls) will need to ensure that it does not discriminate in carrying out its functions and will need to have due regard to the need to advance equality of opportunity for all the protected groups; so if it uses a religious organisation to provide services as a means of performing its functions, that organisation must either do so even-handedly or, if the organisation chooses to make use of exceptions, the public authority must ensure that it provides equivalent services to people of other religions and none.[382]

315.   We agree with the Government's analysis of the impact of the public sector equality duty on the exception for religious or belief organisations with regard to the provision of services and public functions, premises and associations. However, clarification of the requirements of the positive duty in respect of religion and belief is necessary.

SEPARATE AND SINGLE-SEX PROVISION

316.  Less controversially, Schedule 23 also makes provision for exceptions related to communal accommodation in respect of the protected characteristics of sex and gender reassignment. It should also be noted that Part 6 of Schedule 3 permits the provision of separate and 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.[383] Other exceptions to the prohibition of differential treatment on the basis of protected characteristics deserve comment.

NATIONAL SECURITY

317.  Clause 187 makes provision for a wide-ranging exemption from the scope of protection against discrimination for "anything that it is proportionate to do" for the purpose of safeguarding national security. Schedule 3(4) re-enacts existing legislation in making provision for a wide-ranging exemption from the scope of protection against age, sex, disability and gender reassignment discrimination for anything done to safeguard the operational effectiveness of the armed forces, while Schedule 3(5) exempts the intelligence services from the scope of the prohibition on discrimination in the performance of public functions. Clause 113 also provides that individuals (including the claimant) can be excluded from proceedings in relation to a discrimination claim if it is expedient to do so in the interests of national security.

318.  Liberty has criticised these exceptions, suggesting that they are disproportionately wide in scope.[384] In her written evidence to us, the Solicitor-General has justified the scope of the exception set out in Clause 187 (previously Clause 185 and so described in the Government's evidence):

    The Government believes that this exception is necessary to ensure that national security is not compromised. However, the Government accepts that national security cannot provide a blanket excuse for discrimination or other prohibited conduct. Consequently, the exception in clause 185 is worded so that an act done to protect national security is not automatically exempt. The action taken must be proportionate to that purpose.

    In addition, if an individual believes that any of the intelligence and security agencies has discriminated against him/her in the exercise of its functions, he/she may make a complaint to the Investigatory Powers Tribunal (established under the Regulation of Investigatory Powers Act).[385]

319.  We are concerned as to the scope of the national security exceptions contained in the legislation and in particular the complete exclusion of the intelligence services from the prohibition of discrimination in the performance of public functions. We consider that serious consideration should be given to replacing the general exemption with a specific set of provisions applicable to the intelligence services.

CHARITIES

320.  Clause 188 provides that charities are allowed to provide benefits only to people who share a protected characteristic (for example who are of the same sex, sexual orientation or disability), if this is a) in accordance with their charitable instrument and b) if it is objectively justified or to prevent or compensate for disadvantage. It also makes ancillary and associated provisions, including permitting charities to provide activities restricted to a single sex and to require members or participants in certain activities to accept a particular religion or belief in certain specific and limited circumstances. Clause 190 makes similar exceptions in respect of sporting activities.

321.  The Government explained why the provisions of Clause 188 constitute a narrowing of the previous scope available to charities to discriminate:

    The Government has given consideration to restricting the circumstances in which charities will be able to discriminate on the basis of protected characteristics. These circumstances are being restricted further through the Equality Bill. At the moment, most of the exceptions for charities mean that they can discriminate simply if their charitable instrument allows this. The Bill's proposals mean that a charity would also need to show that it was justified in discriminating. This is currently the case only for single-sex charities.[386]

322.  Under Clause 188, any charities benefiting only people who share a protected characteristic, such as people of the same religion or belief, will not be able to discriminate on the basis of that protected characteristic when delivering public or any other services just because their charitable instrument provides for this. They will also need to show that such discrimination is objectively justified or intended to prevent or compensate for disadvantage linked to the protected characteristic in question. It will ultimately be for the courts to decide whether one of those additional tests is met.

323.  The Bill also narrows the existing exceptions for single-sex charities and charities benefiting only people of a racial group so that these no longer apply to discrimination on the basis of sex or nationality, respectively, in relation to employment or vocational training. It retains the bar on charities defining beneficiaries by reference to the colour of their skin.

324.  The EHRC has nevertheless argued that charities are still given excessive room to discriminate:

    Conferment of 'charitable status', with its attendant tax and other benefits, is a public function…exercised, in England and Wales, by the Charity Commission. A charity is defined, in clause 187 of the Equality Bill, as having the meaning given by the Charity Act 2006 (that is, a body which has a potentially charitable purpose which is also of sufficient 'public benefit' to be regarded as a charity). In the Commission's view, a 'public benefit' must be defined compatibly with section 3 HRA: in other words, an ostensibly charitable object cannot be regarded as 'charitable' unless it is compatible with ECHR standards. Thus, a charitable instrument which limits conferment of a benefit to a group defined by reference to a status which fall within Article 14 - as all the protected grounds will - (in a context which falls within the ambit of another Convention right) must be objectively justified on the Strasbourg standard.[387]

325.  It suggests that the proposed charitable exception permitting charities to discriminate in certain circumstances as set out in Clause 188 remains excessively wide in scope, as it appears to a) class all charitable activities as intrinsically "legitimate aims" and b) would permit charities to justify discrimination on the basis that it was designed to "prevent or compensate for disadvantage", when any discrimination in charitable activities should be required to satisfy the full ECHR objective justification test (i.e. be a proportionate means of meeting special needs of a particular disadvantaged group).[388]

326.  We welcome the clarification of the existing legal position in respect of the ability of charities to provide benefits only to people who share a protected characteristic and the strengthening of protection against discrimination achieved by the current wording of Clause 188. However, we consider that there are complex issues as to the extent to which charitable objects must comply with the ECHR. A strong argument can be made that the grant of charitable status must comply with ECHR requirements and this may require the test as to when charities may discriminate set out in Clause 188(2) to be tightened by the inclusion of a full proportionality requirement.



363   See paragraphs 15-25 above. Back

364   Ev 67 at Q 68 Back

365   Ev 67 at Q 68 Back

366   HC Deb, 12 June 2009, col 1067-1070. Back

367   HC Bill 141, Session 2008-09. Back

368   See e.g. Concluding Observations of the Committee on Economic, Social and Cultural Rights, E/C.12/GBR/CO/5, 22 May 2009, para. 16. Back

369   See e.g. Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland, CERD/63/CO/11, para. 23. Back

370   ILO Convention C111, 363 UNTS 31. Back

371   Article 1(1)(a). Back

372   Article 2. Back

373   Article 3. Back

374   Schedule 22(4), which is designed to replicate the effect of regulation 39 of the Employment Equality (Religion or Belief) Regulations 2003. Back

375   EN, para. 939. Back

376   Schedule 9, para. 3. Back

377   Section 37 of the Education and Inspections Act 2006 has made it possible for a reserved teacher to become a head teacher. Back

378   2000/78/EC. Back

379   Ev 67 at Q 72 Back

380   Ev 99 Back

381   Sixth Report of Session 2006-07, Legislative Scrutiny: Sexual Orientation Regulations, HL Paper 58, HC 350, para. 52. Back

382   Ev 67 at Q 63 Back

383   See paragraphs 139-140 above. Back

384   Ev 149 Back

385   Ev 67 at Q 69 Back

386   Ev 67 at Q 70 Back

387   Ev 132 Back

388   Ev 132 Back


 
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