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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