Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


CONCLUSIONS AND RECOMMENDATIONS

Evidence and Acknowledgements
  
1.We welcome the full and prompt responses provided by the Solicitor-General. (Paragraph 2)
  
2.We welcome the engagement of the public and interested organisations in our legislative scrutiny work. (Paragraph 3)
  
Explanatory Notes
  
3.In our view, these are useful and make the Bill much more accessible than it might otherwise have been. (Paragraph 5)
  
4.We welcome the Government's provision of a detailed human rights memorandum based closely on the ECHR memorandum prepared for the Legislation Committee and we commend this precedent to other Departments as an example of best practice. (Paragraph 6)
  
5.We reiterate our view of the importance of detailed human rights analysis within the Explanatory Notes to Bills to assist all those scrutinising proposed legislation and urge the Government to ensure that such analysis is routinely contained within the Explanatory Notes accompanying Government Bills. (Paragraph 7)
  
The Right to Equality
  
6.In our view, the Government's refusal to ratify Protocol 12 is unwarranted, and fails to give sufficient effect in national law to the UK's international human rights obligations, especially under the ICCPR. We recommend that it reconsider its decision. (Paragraph 14)
  
A Constitutional Guarantee or Purpose Clause
  
7.We accept that the objectives of a constitutional guarantee to equality and a purpose clause are not identical, but they go to the same goal of ensuring respect for equality. We call on the Government to use the Bill or the Constitutional Reform and Governance Bill to enshrine a freestanding constitutional right to equality, consistent with its international obligations under Article 26 of the ICCPR, amongst other human rights instruments. As we state on a number of occasions in specific sections of our Report, at the very least, problems of interpretation may arise which could be potentially alleviated by the inclusion within the Bill of a constitutional guarantee or purpose clause. On the level of the bigger picture, a purpose clause would allow the Bill to spell out the vision for equality which the Bill aspires to promote and protect. However, as we noted in our Bill of Rights Report, we also welcome the fact that the Government is considering the inclusion of a constitutional guarantee within its consultation on a Bill of Rights and Responsibilities and look forward to the outcome of its consultation with interest. (Paragraph 25)
  
Socio-economic inequalities
  
8.Whilst we agree with the human rights memorandum that public authorities do not enjoy rights under the European Convention on Human Rights (ECHR), it is disappointing that the Government did not spell out in the memorandum how, if at all, the duty would affect the human rights of service users. In our view, the new duty has the potential power to enhance human rights for individuals receiving public services, including in particular their socio-economic rights. (Paragraph 28)
  
9.We are disappointed that the Government has chosen to exclude from the remit of the new duty people who experience amongst the greatest socio-economic inequality and disadvantage in the UK. The Government is entitled to exercise control over its borders but, in our view, has failed to establish why it is necessary and proportionate to exclude those subject to immigration control from the operation of the new socio-economic duty in relation to all public services. (Paragraph 29)
  
10.Consistent with our approach in our Bill of Rights Report, we do not go so far as to suggest that the new socio-economic duty should be directly enforceable by individuals. However, as in the case of the existing equality duties, we do consider that there is a role for courts in reviewing whether public authorities have given effect to their procedural obligation to "have due regard" to the desirability of reducing inequality and are pleased to note that such decisions will be subject to judicial review on that ground. We recommend that guidance should specifically require public authorities to explain what steps they have taken to comply with their duty. Such transparency will allow the public to determine whether public authorities are meeting their new obligations and, where they feel that they are not, seek judicial review if they so wish. Without this requirement, the possibility of bringing judicial review proceedings will be rendered less effective. (Paragraph 32)
  
Protected Characteristics: Age Discrimination
  
11.We welcome the inclusion of age within the scope of the public sector equality duty, along with the general prohibition of age discrimination in the areas of association, the provision of services and the performance of public functions. Age discrimination constitutes an unjustified denial of the right to equality and remains a serious problem in British society. The prohibition of age discrimination in service provision and the performance of public functions will help ensure that all age groups enjoy equality of respect in how they are treated by service providers and those performing public functions. (Paragraph 37)
  
12.We also recognise that there must be exceptions to the ban on age discrimination in certain areas, and in particular when it comes to the provision of special services and facilities to older and younger persons, such as travel concessions and group holidays. However, we are concerned that the Government has chosen to introduce these exceptions through secondary legislation and the use of the very wide-ranging powers conferred upon Ministers by Clause 192. The scope of these exceptions should be the subject of parliamentary debate and set out in primary legislation and should be carefully tailored and convincingly justified. (Paragraph 38)
  
13.The total absence of protection against age discrimination for those under 18 in service provision and the limited protection in relation to the performance of public functions means that children who are subject to unjustified discrimination are left with little or no legal protection. This may prevent children enjoying full protection of their rights as set out in the UN Convention on the Rights of the Child (UNCRC). (Paragraph 44)
  
14. The Bill represents an opportunity to incorporate fully children's protection from unjustified discrimination into UK law. In our view, the provisions of Clause 27, which have the effect of depriving children of any rights under the discrimination legislation in the fields of service provision and the performance of public functions, are unnecessarily sweeping and extensive. We accept there are many circumstances in which it is appropriate to treat adults and children differently and to provide special and tailored services directed at children of particular ages. We share the Government's concern that the legislative prohibition of age discrimination should not call into question the legality of legitimate differences in treatment as between adults and children and between children of different ages. However, the use of age distinctions can be objectively justified in anti-discrimination law, as recognised both in current legislation and in the Bill. Most of the distinctions that exist between the treatment of adults and children, or between children of different ages, are clearly capable of satisfying this test of objective justification and are highly unlikely to attract frivolous legal challenges. (Paragraph 45)
  
15.We consider that the situation of children is no different and that exceptions to the general prohibition on age discrimination could also be made as required to cover age distinctions where children are involved. (Paragraph 46)
  
16.We also consider that the public sector equality duty should apply to how children are treated in schools and children's homes. The current exclusion of the provision of education, accommodation, benefits, facilities and services in schools and children's homes from the scope of the duty as set out in Schedule 18(1) is, in our view, unnecessary. It is important that the rights of children to be free from discrimination and unequal treatment, as recognised by the UNCRC, are protected and that public authorities give due regard as to how to exercise their public functions with this objective in mind. However, the scheme of the public sector equality duty is sufficiently flexible to ensure that public authorities continue to be able to treat children differently or make special provision for children of particular ages when this is justified. (Paragraph 47)
  
Protected Characteristics: The Definition of Disability
  
17.We welcome the deletion of the list of "capacities" from the definition of disability, which will clarify the law and make it easier for claimants to demonstrate that they are "disabled" for the purposes of the legislation. (Paragraph 49)
  
18.We consider that it is important to have a clear and workable definition of disability in the Bill, which protects those who are genuinely disabled without extending the definition of disability too far. We concur with the view previously expressed by the House of Commons Work and Pensions Committee that there are strong arguments for adopting a definition of disability in the Bill which is more in tune with the "social model" of disability set out in the UN Convention on the Rights of Persons with Disabilities, which the UK Government recently ratified. It would also reflect the real life experiences of many disabled people, who may face discrimination from employers and service providers on account of their impairments even when they are insufficiently "disabled" to satisfy the medical-centred tests set out in existing UK legislation. (Paragraph 54)
  
19.We recommend that the Government give serious consideration to [the] proposal [that the existing definition of disability set out in the DDA should be altered to give protection from discrimination to everyone who has (or has had or is perceived to have) an impairment, without requiring the effects of that impairment to be substantial or long-term]. At a minimum, we recommend that the requirement contained in the current definition of disability that the effects of an impairment be "long term" in nature should be removed. There is little risk that the adoption of a definition of disability that is closer to the "social model" will result in abuse and the trivialisation of the status of being disabled. The justification defence to disability discrimination claims, the "substantial disadvantage" threshold which must be crossed before a claim for reasonable adjustment can be made, and the "reasonableness" requirement itself all provide protection against the potential for abuse and will protect employers against a wide expansion of liability. (Paragraph 55)
  
Protected Characteristics: Gender Reassignment
  
20.In our view, protection currently offered by existing legislation is unduly restrictive as it denies protection to those not subject to medical supervision. We therefore welcome the expanded human rights protection offered to persons undergoing a process of gender reassignment. However, we are concerned that the new definition may be interpreted in an unduly restrictive manner, as a transsexual person will only be protected from discrimination if he or she can demonstrate an intention to undergo a process of gender reassignment. This may leave individuals who cannot yet undergo a process of reassignment, such as children under the age of 16, or those for whom such a process would be of little or no relevance, such as inter-sex persons or those living in a state of gender variance, without protection. Reliance upon the prohibition of discrimination on the basis of perception to close these gaps is unsatisfactory, as this offers at best an indirect and less than clear level of protection. We recommend that the term "gender identity" replace "gender reassignment" as the relevant protected characteristic. This would offer wider protection against the prejudice and stereotyping which continue to affect many transsexual people adversely. There is little risk that protecting 'gender identity' will result in abuses, frivolous cases or the trivialisation of discrimination law, as protection will still be linked to transsexual status, rather than to appearance or conduct. (Paragraph 59)
  
21.We consider that these amendments [amendments NC12(3) to (5) tabled by Lynne Featherstone MP and Dr Evan Harris MP, for Report Stage] deserve serious consideration. (Paragraph 60)
  
Protected Characteristics: Marriage/Civil Partnership
  
22.We consider that good arguments exist to prohibit discrimination against individuals on the basis that they are not married or in a civil partnership, including cohabiting couples in enduring relationships. This would ensure symmetry of protection for those within or outside such relationships, and protect individuals against forms of discrimination on the grounds of marital status which have existed in the past and may re-emerge again, such as the practice of discriminating against unmarried persons in promotion processes and pay awards. (Paragraph 65)
  
23.We recommend that the prohibition of discrimination against married persons or persons in a civil partnership should be extended to cover harassment, discrimination in the provision of goods and services, premises, education and membership of associations. This would ensure comprehensive protection against forms of discrimination on the basis of marital status that may not have been highlighted by the parties who responded to the consultation exercise but may nevertheless exist, or which may be easier to challenge using the prohibition on discrimination based upon the protected characteristic of being married or in a civil partnership, rather than other characteristics such as sex or sexual orientation. (Paragraph 68)
  
Other Protected Characteristics
  
24.We are pleased to note that the Government has committed to monitoring the position of genetic predisposition and caste to see whether there is a need in the future to specify them as protected characteristics. We urge the Government proactively and regularly to review the situation and to bring forward legislation should there be evidence that further protection in these areas is required. (Paragraph 72)
  
The Different Forms of Discriminatory Behaviour
  
25.We welcome the provisions of the Bill which standardise and clarify the definitions of direct discrimination, indirect discrimination, harassment and victimisation and harmonisation. This should make discrimination law more accessible and easier to understand and apply. We also welcome the levelling up of protection against indirect discrimination and harassment and the removal of the "comparator requirement" in victimisation cases. We are pleased to note the amendments made to the Bill during PBC which remedied the defective provisions relating to pregnancy discrimination which were contained in its original text. (Paragraph 75)
  
26.We consider that the previously used test in direct discrimination of "on the grounds of" has acquired a clear and definite interpretation through case-law. The Government is to be applauded for its concern for attempting to ensure the definition of direct discrimination is phrased in accessible terms. However, little is gained by replacing "on grounds of" with "because of". "On grounds of" is both readily comprehensible and has the advantage of being a well-established term of art. Replacing this phrase with "because of" risks the emergence of alternative interpretations and may undermine a clear and well-established legal position which ensures rigorous and clear protection against direct discrimination. We consider that it is strongly arguable that the definition should be amended accordingly. (Paragraph 80)
  
27.In our view, the extension of protection against discrimination based on association and perception across all the protected characteristics will further the protection of human rights. In particular, it will ensure greater protection against discrimination for individuals with caring responsibilities for disabled persons, children and older persons. It will also provide important protection for individuals who might be perceived to be involved in a process of gender reassignment, or to be of a different gender, sexual orientation, age, religion or ethnicity than their own, or who associate with friends and acquaintances who possess a protected characteristic. (Paragraph 86)
  
28.However, we are concerned as to how the text of the Bill makes provision for this extension of protection. If the interpretation given by the UK courts to the phrase "on grounds of" in cases such as Showboat is carried across and applied to the new phrase "because of" in the definition of direct discrimination in Clause 13, as the Government has suggested will happen, then the Bill will achieve the Government's goal of prohibiting discrimination based on association and perception. However, the lack of an explicit prohibition of discrimination based on association and perception on the face of the Bill makes the legislation less clear and, in the Government's own words, less "accessible to non-specialists" and less "accessible to the ordinary users of the Bill". While the current formulation in Clause 13 is elegant, the absence of such an explicit prohibition also risks leaving victims unaware of their legal rights and may generate uncertainty among employers and service providers. The insertion of express provisions prohibiting discrimination based on association and perception would clarify the legal position and make the Bill more comprehensible. This could be accompanied by guidance to make clear that the inclusion of this prohibition should not be interpreted as limiting the scope and range of the general prohibition of direct discrimination contained in Clause 13. This could meet the Government's concerns about inserting such an explicit provision into the Bill and contribute towards clarifying its scope and content. The extension of protection against association and perception marks a considerable expansion of human rights protection: in our view, it is important that its existence is clearly indicated on the face of the Bill. We would support an amendment that would have this effect. (Paragraph 87)
  
Discrimination Against Carers
  
29.Carers perform crucial work, shouldering the burden of providing support and care for many of society's most vulnerable individuals. Their work and commitment plays a crucial role in ensuring respect for the right to human dignity of those they care for. In so doing, they often pay a price in their working lives and chosen careers and may at times face arbitrary and unfair discrimination. However, whilst carers have the right in certain circumstances to request flexible working, at present they have very limited legal protection. We therefore welcome the extension of protection for carers that the Bill provides through the prohibition of discrimination by association. This will ensure greater protection for individuals with caring responsibilities for disabled persons, children and older persons. However, the protection offered is limited. In particular, a carer may face serious difficulties in showing that an employer or service provider discriminated on the basis of his or her association with a person with a protected characteristic. In addition, the Bill appears to leave those with caring responsibilities exposed to the threat of discriminatory treatment which is based on their status as carers, as distinct from discrimination based on the characteristics of those they care for. (Paragraph 91)
  
30.In our view, carers should be provided with greater protection against discrimination and other forms of unfair treatment. The right to request flexible working that carers currently enjoy is important and provides some opportunity for carers to seek adjustments in their workplace, but more comprehensive and far-reaching protection appears to be necessary. In addition, we are not persuaded by the Government's argument that carers choose their status and therefore anti-discrimination law is not a suitable tool for protecting them against unfair treatment. This does not reflect the position of many carers, in particular younger persons with caring responsibilities and those from less well-off socio-economic backgrounds, who often have little real choice when they assume caring responsibilities. In our view, the crucial social role performed by carers justifies enhanced legal protection. As a result, we recommend that the Government extend the Bill to provide greater protection to carers and give serious consideration to introducing a form of reasonable accommodation duty upon employers where appropriate. (Paragraph 92)
  
Combined Discrimination: Dual Characteristics
  
31.We welcome the widening of protection from discrimination to a combination of two grounds. We consider that this will enhance the human rights of individuals who have been discriminated against. Whilst, in our view, combined discrimination on two grounds should not be an excessive burden to businesses and employers, clear and accessible guidance is required in order to ensure that those who are required to comply fully understand their legal obligations. We urge the Government to keep the situation actively under review, and to give serious consideration to extending protection to more than two grounds in the future. (Paragraph 98)
  
32.However, we are concerned that combined discrimination will apply only to direct discrimination and not to other forms of discrimination, such as indirect discrimination and harassment, which, in our view, could benefit from the additional protection that extension beyond a single ground would provide. We also note, with disappointment, that maternity, pregnancy, marriage and civil partnership are excluded from the scope of the new clause. We call on the Government to explain in detail why it is unwilling to extend combined discrimination to indirect discrimination and harassment and why maternity, pregnancy, marriage and civil partnership are excluded from this area. (Paragraph 99)
  
Harassment
  
33.In our view, the definition of harassment set out in Clause 25 clarifies and extends existing protection against harassment while striking an appropriate balance between protecting the right to freedom of expression (in Article 10 ECHR and other international instruments) and the right to equality (in Article 14 ECHR, Article 26 ICCPR and other international treaties). This definition of harassment should be applied by courts and tribunals in the light of the relevant ECHR case-law on the Article 10 right to freedom of expression. However, a more restrictive definition of harassment on the basis of sexual orientation may be appropriate in the context of service provision and the performance of public functions. (Paragraph 105)
  
34.We consider that strong arguments exist for prohibiting harassment on the grounds of being married or in a civil partnership, and harassment on the grounds of pregnancy or maternity. It would ensure comprehensive protection against forms of discrimination on the basis of marital status, pregnancy or maternity which may not have been highlighted by the parties who responded to the consultation but may nevertheless exist. It would also eliminate confusing distinctions between the different characteristics, thereby improving the clarity of the legislation. In addition, it may make it easier to challenge harassment based on these characteristics rather than having to rely on the roundabout route of attempting to make out a case based on the characteristics of sex or sexual orientation. (Paragraph 108)
  
35.We consider that the absence of an explicit prohibition on harassment related to sexual orientation in the areas of service provision, the performance of public functions, and disposal, management and occupation of premises represents a significant gap in the protection against discrimination offered by the Bill. It leaves individuals without clear protection against demeaning and degrading harassment in important areas of their life. This may give rise to issues under the prohibition of discrimination (Article 14 ECHR) read in conjunction with the right to respect for private and family life (Article 8 ECHR), to freedom of thought, conscience and religion (Article 9 ECHR) or the prohibition on inhuman or degrading treatment (Article 3 ECHR). (Paragraph 114)
  
36.As currently framed, the Bill may offer some protection against harassment as a result of the general prohibition against direct and indirect discrimination on the grounds of sexual orientation: case-law has established that harassment that constitutes "less favourable treatment" may in certain circumstances constitute direct discrimination. However, the extent to which this is the case remains unclear. As a result, the absence of explicit provisions on harassment relating to sexual orientation that takes place in the course of service provision or the performance of public functions leaves the legal position unclear and ambiguous, to the benefit of neither service users nor service providers. (Paragraph 115)
  
37.Given the guidance provided by the Northern Ireland High Court in the Christian Institute judicial review, it would appear that a prohibition on harassment related to sexual orientation can be applied in a manner compatible with the ECHR Article 9 and 10 rights (right to freedom of religion and freedom of expression) in the areas of service provision and the performance of public functions. (Paragraph 117)
  
38.A narrower definition of harassment would however provide a more precise level of protection while giving clear protection to Article 9 and 10 ECHR rights. As we have previously noted, "[c]onduct which has the purpose or effect of 'violating dignity' or creating an 'offensive environment' potentially covers a very wide category of conduct given the inherent vagueness of the terms 'dignity' and 'offensive'". This inherent vagueness may have a potentially greater "chilling effect" on freedom of expression if applied in the context of service provision and the performance of public functions than it does in the context of employment and occupation, where the "closed" environment of a workplace requires greater consideration to protecting the Articles 14, 8 and 3 ECHR rights of employees who face harassment. We reiterate our previous conclusion that a more precise and narrow definition of harassment should be applied in this context in the interests of reducing the risk of incompatibility with the rights to freedom of expression and freedom of religion and belief. We are of the view that language or behaviour that in respect of sexual orientation or gender identity violates someone's dignity or creates an environment that is humiliating, threatening, degrading or offensive" is not justified in schools or in the provision of public services. We therefore recommend that protection from harassment be available on the grounds of sexual orientation and gender identity in schools using the narrower conjunctive definition as there is a "captive population" and vulnerable population at risk and there is an established problem of bullying and harassment in this area. We also recommend that protection from harassment be available on the grounds of sexual orientation using the narrower conjunctive definition in the provision of public services as those who use public services may also be "captive populations" and vulnerable. (Paragraph 118)
  
39.We consider that the threshold requirement [in Clause 38(3), which provides that employer liability only applies where the employer knows that the same employee has been harassed on two prior occasions] should be reduced to one previous incident, or that this requirement should be replaced with a provision that an employer will be liable when they ought reasonably to have been aware of the risk of third-party harassment. (Paragraph 119)
  
Discrimination Related to Disability
  
40.We welcome the provisions of the Bill which clarify and extend protection against discrimination related to disability, in particular the strengthening and clarification of the threshold or trigger point of the duty to make reasonable accommodation set out in Clause 20, and the extension of protection against indirect discrimination that relates to a person's disability provided for in Clause 18. However, the provisions of Clause 15 providing for the prohibition of "discrimination arising from disability" as currently worded appear excessively narrow in scope and do not adequately redress the gaps in protection left by the Malcolm decision. We welcome the Government's readiness to re-examine these provisions and look forward to the outcome of its deliberations. (Paragraph 124)
  
41.We consider it to be important for the "asymmetrical" nature of UK disability discrimination law to be retained and to ensure that the provision of special assistance to particular categories of disabled persons is not inadvertently exposed to legal attack. The UN Convention on the Rights of Persons with Disabilities makes clear that states must take action to accommodate the special needs of disabled persons in order to secure their rights to equality and human dignity. To ensure the substantive equality of disabled persons, it will often be necessary to treat them differently from others. The "asymmetrical" nature of UK disability discrimination law currently reflects this requirement and in so doing gives effect to international human rights standards. (Paragraph 126)
  
42.However, as currently worded, the provisions of Clause 13(3), which state that it is not discrimination to treat a disabled person differently from a non-disabled person "in a way which is permitted by or under this Act" are uncertain and ambiguous. Many forms of "asymmetrical" treatment of disabled persons are not specifically "permitted by or under this Act". At present, the Bill does not clearly establish the "asymmetrical" nature of protection against disability discrimination. We welcome the undertaking given by the Government at Committee stage to revisit the wording of this provision. (Paragraph 127)
  
43.We welcome this apparent commitment [to redraft clause 23]. (Paragraph 129)
  
44.The comparator requirement in UK disability discrimination law has often generated unforeseen difficulties and complexities which have restricted the effective protection of the right to equality. The unsatisfactory wording of Clause 23 as currently drafted is an example of this. We welcome the Government's undertaking to re-examine this wording. We consider that there is a need for clear statutory language outlining how courts and tribunals are to apply the comparator requirement. (Paragraph 131)
  
45.We consider that a strong case exists for providing on the face of the Bill that the knowledge requirement will be deemed to be satisfied when an employer or service provider failed to ask a claimant whether they suffered from a disability when it was reasonable to do so. If supplemented by guidance from the EHRC, this could enhance protection against disability discrimination by ensuring that employers and service providers cannot rely upon deliberate ignorance or a "don't ask, don't tell" policy to evade their obligations. (Paragraph 135)
  
46.Serious consideration needs to be given to limiting the use of pre-employment questionnaires to circumstances which relate to the ability of the applicant to perform job-related functions, as is the position in the USA as a result of the Americans with Disabilities Act. We welcome the Government's commitment to reconsidering the matter and look forward to scrutinising its amendments. (Paragraph 138)
  
Services and Public Functions
  
47.We welcome the clarification and extension of protection against discrimination in the area of service delivery and the performance of public functions. We also welcome the provisions of the Bill that permit separate or single-sex services in certain carefully delineated circumstances. We consider that separate provision is not incompatible with human rights standards and may indeed be necessary to ensure compliance with these standards in certain circumstances. For example, the provision of separate services for women may be necessary to ensure respect for the human dignity of older persons and victims of domestic violence. However, we also note the importance of the conditions imposed by Part 6 of Schedule 3 as to when such separate service provision will be lawful. These conditions are an important safeguard against abuse of the possibility of separate service provision and in particular the unjustified exclusion of transsexual persons from single-sex services directed at persons who share their acquired gender. (Paragraph 140)
  
The Definition of Public Authorities
  
48.We reiterate our view that the development of the case-law concerning the interpretation of section 6 HRA has left real gaps and inadequacies in human rights protection in the UK. The use of the HRA definition in this Bill to define the scope of public functions ensures that these gaps are carried across into the definition of public functions set out in Clause 30(4). These gaps pose less of a problem in the context of anti-discrimination law than they do under the HRA, as protection against discrimination extends to the provision of goods and services and is not confined to the performance of public functions as defined by section 6 of the HRA. However, the Bill once again draws attention to the definitional problems within the HRA. The inadequate section 6 HRA definition may have a limiting effect on the number of bodies subject to the positive equality duty. (Paragraph 143)
  
Immigration Exceptions
  
49.In our Report on the UN Convention on the Rights of Persons with Disabilities, we drew attention to the Government's proposed reservation on immigration control and recommended that it was unnecessary, inconsistent with the object and purpose of the Convention and appeared not to constitute a valid reservation. We consider that the immigration exception as set out in Schedule 3(16) is also inconsistent with the object and purpose of the UN Convention. This exception could permit treatment of disabled persons which could violate their right to equal treatment, as well as potentially threatening other rights such as the right to life protected under Article 2 ECHR and the Article 3 ECHR right to freedom from inhuman and degrading treatment if disabled persons with serious illnesses are denied entry to or leave to remain in the UK and deported back to countries where they may be subject to life-threatening conditions in the absence of a reason to do so under immigration law. (Paragraph 147)
  
50.Further, the scope of this exception is excessively wide, in particular in how it exempts all acts done "if necessary for the public good". There is no explicit requirement that any discriminatory acts must be done for a legitimate aim and be objectively justified. The Government's suggestion that a proportionality requirement will be automatically applied by courts in assessing the legality of acts done under the exception appears to be very optimistic: Schedule 3(16) does not make provision for such a test and not every case involving this exception will result in the application of the proportionality requirements applied under the HRA. We accept that the immigration authorities may legitimately wish to exclude people from entering or remaining in the UK in certain specific and limited circumstances, for example if they have certain highly contagious diseases. However, any such decisions must be necessary to protect public health or public safety, must achieve a legitimate aim and be objectively justified in line with the standard proportionality analysis. Consistent with the Solicitor-General's indication in the PBC, we recommend that the Government amend the Bill to make this explicit. (Paragraph 148)
  
51.We do not consider that the Government has established a case for retaining the ethnicity and nationality immigration exception in its current form. Discrimination on the basis of nationality is an unavoidable feature of immigration control. However, the case-law of the European Court of Human Rights, the House of Lords and other courts have established that pressing justification must be shown for the use of distinctions based on race, ethnicity or associated concepts such as national origin. The provisions of the UN Convention on the Elimination of Racial Discrimination also require states to take steps to avoid the use of race-based distinctions. In our view, the Government has not established the existence of a pressing justification for the continuation in force of this exception insofar as it extends to distinctions based on ethnicity and national origin. The Government has given few examples where the use of ethnicity or national origin would be justified to deal with a pressing problem. Given the range of immigration powers available and the ability of the Government to authorise the use of distinctions based on nationality, we consider that there is insufficient justification for including an exception that permits discrimination based on ethnicity and national origins in the Bill. (Paragraph 152)
  
52.We have previously recognised the basis for the religion and immigration exception. However, we have emphasised that the exception should not affect the duty of public authorities exercising immigration functions to comply with the duty of non-discrimination under Article 14 ECHR, where these functions engage the right to manifest religion under Article 9 ECHR, or rights to respect for private or family life under Article 8 ECHR. We also consider that the wide scope of the existing power to exclude persons whose presence in the UK would not be conducive to the public good means that the exception set out in Schedule 3(18) is unnecessary. The case-law of the European Court of Human Rights, the House of Lords and other courts have established that strong justification must be shown for the use of distinctions based on religion or belief. Applying this approach to the Bill, the wide scope of the existing power to exclude persons on the basis of the public good appears to make the inclusion of an exception permitting exclusion solely on the grounds of possession of a religion or belief unnecessary and undesirable. This provision should be removed. (Paragraph 156)
  
53.We welcome the protection offered by Part 5 of Schedule 3 against discrimination in the provision of insurance services. We consider that the distinction in Schedule 3(21) between the characteristics of sex, pregnancy and maternity and gender reassignment, where the use of reasonable actuarial data is permitted to justify direct discrimination in certain circumstances, and other protected characteristics, where the use of such data cannot justify direct discrimination, is justifiable on the basis that it reflects a genuine social need for gender-aggregated data to be available to insurance providers. (Paragraph 158)
  
54.However, we are concerned that the exception set out in Schedule 3(22) in respect of existing insurance policies appears to permit ongoing discrimination on the basis of protected characteristics. No equivalent provision appears to exist in current anti-discrimination legislation, which raises concerns that the principle of non-regression has not been respected. The rationale behind the width of this exception also appears to be unclear, as little or no justification has been offered by the Government as to why such a wide exception is considered to be necessary for existing insurance policies. As a consequence, we consider that the scope of this exception as currently framed raises serious concerns. (Paragraph 159)
  
Premises
  
55.We consider that these exceptions strike an appropriate balance between protecting the right to equality and the rights to privacy and freedom of association. (Paragraph 161)
  
Occupational Requirements
  
56.We welcome the clarification in Schedule 9(2) and 9(3) of the circumstances in which occupational requirements linked to a religious belief or ethos can be imposed by faith-based organisations and organised religious groups. We accept that some limitations on non-discrimination on grounds of religion or belief may be justified and appropriate in relation to religious organisations and that the exemption in Schedule 9(2) fulfils that role. We also consider that in general the provisions of Schedule 9(2) and 9(3) strike the correct balance between the right to equality and non-discrimination and the rights to freedom of religion or belief and association, especially if interpreted in line with the approach set out in Amicus v Secretary of State for Trade and Industry, which emphasised the need for such exceptions to the general prohibition on direct discrimination to be "construed strictly" on the basis that they are "a derogation from the principle of equal treatment". (Paragraph 174)
  
57.We consider that substantial grounds exist for doubting whether the "religious ethos" exception provided for in Schedule 9(3) permits organisations with a religious ethos to impose wide-ranging requirements on employees to adhere to religious doctrine in their lifestyles and personal relationships, by for example requiring employees to manifest their religious beliefs by refraining from homosexual acts. We agree with the Government that it is "very difficult to see how in practice beliefs in lifestyles or personal relationships could constitute a religious belief which is a requirement for a job, other than ministers of religion" (which is covered by a different exception). This should put beyond doubt the position that the exemption in Schedule 9(3) cannot be used to discriminate on the basis of sexual conduct linked to sexual orientation. We support this view and recommend that this be made clear in the Bill. (Paragraph 175)
  
58.We are concerned about the status of employees of organisations delivering public services who find themselves as employees of organisations with a religious ethos who have been contracted to provide the public service. They have a right not to be subjected to religious discrimination on the basis of the ethos of the contracting organisation if they are otherwise performing their job satisfactorily. We are concerned that the widespread use of the "religious ethos" exception set out in Schedule 9(3) by organisations based on a particular religion or belief who are contracted to deliver services on behalf of public authorities could result in public functions being discharged by organisations in receipt of public funds who are nevertheless perceived to discriminate on the basis of religion or belief. (Paragraph 176)
  
59.We reiterate that the exemption of the armed forces from the scope of the disability provisions of the Bill is unnecessary and incompatible with the UN Convention on the Rights of Persons with Disabilities. It also may give rise to issues of incompatibility with the ECHR, in particular with the Article 8 ECHR right to respect for private life combined with the Article 14 ECHR right to equality and non-discrimination. We repeat our recommendation that the Government should at least reconsider the necessity for the reservation within 6 months of Royal Assent being signified to the Equality Bill. (Paragraph 182)
  
60.In our view, there are strong arguments to suggest that the current statutory provisions governing the default retirement age unduly restrict the rights of older workers to equal treatment and non-discrimination. We recognise that employers have a legitimate interest in workforce planning. However, alternative methods of workforce planning exist that avoid the age discrimination inherent in the operation of a default retirement age, such as the use of performance management techniques and clear job evaluation and assessment mechanisms. The default retirement age can close off opportunities for individual self-realisation and is often perceived by those affected as a denial of their right to equality which is based on age stereotyping. We welcome the decision of the Government to bring forward its review of the mandatory retirement age provisions to 2010 and support the abolition of the default retirement age in its current form. We strongly urge the Government to complete its further consultative process with sufficient speed to enable the default age of retirement at 65 to be removed during the lifetime of this Parliament. (Paragraph 185)
  
Equal Pay
  
61.We welcome the clarification of equal pay law and the provisions of Clause 68, which for the first time make it possible to bring a claim for direct sex discrimination when a person is paid less because of their sex. However, in general, we consider that the equal pay provisions of the Bill represent a wasted opportunity to enhance protection against gender inequality by clarifying and improving a complex and increasingly outmoded area of law. The current structure of equal pay legislation, which the Bill re-enacts in a largely unchanged manner, appears increasingly unable to cope with the complexity of equal pay claims. The existing equal pay framework also struggles to address issues of occupational segregation, identified by the CEDAW Committee as a persistent problem which contributes greatly to the size of the pay gap between men and women in the UK. (Paragraph 189)
  
62.In particular, we consider that the equal pay provisions would benefit from the establishment of new arbitration mechanisms, the introduction of positive duties upon employers in certain circumstances to take steps to monitor and respond to patterns of pay inequality, and the amendment of Clause 76 to permit the use of hypothetical comparators in all equal pay claims. These measures would constitute the type of "proactive and concrete" steps recommended by the CEDAW Committee as necessary to eliminate patterns of occupational segregation and to close the pay gap between men and women. (Paragraph 190)
  
63.We welcome the protection provided by Clause 74 of the Bill against victimisation of employees who discuss their pay with colleagues with a view to finding out if differences exist that are related to a protected characteristic. This should help ensure greater transparency about pay and protect employees who choose to investigate whether they are discriminated against in their work remuneration. However, this protection is confined to discussions with colleagues and former colleagues, and does not appear to extend to cover discussions with trade union officials who are not work colleagues, journalists or others whom an employee might wish to approach to discuss issues of pay equality. We consider that in the interests both of securing greater transparency about pay and to protect freedom of expression, the protection provided by Clause 74 should be extended to all discussions about pay that are directed towards finding out whether differences exist that are related to a protected characteristic. (Paragraph 192)
  
64.We consider that this amendment [amendment NC17, tabled by Lynne Featherstone MP and Dr Evan Harris MP, for Report Stage] deserves serious consideration. (Paragraph 192)
  
65.We welcome Clause 75, which enables Ministers to require employers with large workforces to publish information on gender pay gaps that may exist. This is an example of the type of "proactive measure" identified by the CEDAW Committee as necessary to address the problems of occupational segregation and the considerable gender pay gap, even if such a requirement would fall short of a positive duty to take measures to address any gaps that are identified. (Paragraph 194)
  
66.We recommend that the Bill should include a wider power than in Clause 75(1) for Ministers to make regulations about mandatory pay audits. (Paragraph 194)
  
67.We consider that both amendments [amendment NC3 tabled by Lynne Featherstone MP, Dr Evan Harris MP and John McDonnell MP and amendment NC5 tabled by Lynne Featherstone MP and Dr Evan Harris MP, for Report Stage] deserve serious consideration. (Paragraph 195)
  
68.We welcome the clarification of the "material factor" defence in Clause 66 and the provision that "the long-term objective of reducing inequality between men's and women's terms of work is always to be regarded as a legitimate aim". However, we consider that further clarification of the scope of this defence is necessary. In particular, we consider that Clause 66 should be amended to make clear that the phrase "difference of sex" includes both direct discrimination and indirect discrimination which is not objectively justified. In addition, Clause 66 should be amended to clarify that while the initial burden of proof may rest on the claimant challenging the application of the material factor defence to show that particular disadvantage exists (i.e. to show the existence of a disparate adverse impact on the relevant group of female or male employees), the burden if the claimant succeeds shifts to the respondent, who must then justify what would otherwise be unlawful direct sex discrimination. This will ensure that UK law complies with the case-law of the ECJ in this area and remains capable of addressing equal pay claims that arise out of patterns of occupational segregation. (Paragraph 199)
  
69.We consider that this amendment [amendment NC6 tabled by Lynne Featherstone MP and Dr Evan Harris MP, for Report Stage] deserves serious consideration. (Paragraph 199)
  
70.We consider that Clause 61 should be clarified to make it explicit on the face of the Bill that equal pay comparisons can be made with persons who are not contemporaneously employed by the same employer as the claimant. (Paragraph 200)
  
The Scope of Protection
  
71.We welcome the extension of the scope of protection from discrimination to transsexual pupils. (Paragraph 203)
  
72.In view of the relatively high rate of teenage pregnancies in the UK, we are not persuaded that it is justifiable to exclude discrimination on grounds of pregnancy and maternity from the scope of the Bill's protections in the field of education in schools. (Paragraph 206)
  
73.We therefore consider that harassment on grounds of sexual orientation and gender reassignment should be included in the forms of discrimination prohibited by the Bill in education in schools, albeit with a narrower definition of harassment as explained earlier in this Report. (Paragraph 208)
  
School Admissions
  
74.We may return to this matter in the light of that judgment [JFS case]. (Paragraph 212)
  
Curriculum
  
75.We recommend that the exemption for the content of the curriculum be confined to the scope of the existing exemption, and not extended to other protected characteristics. (Paragraph 220)
  
76.We draw this issue [the difficulties for faith schools if the duty not to discriminate were to apply to content of the religious education curriculum] to the attention of both Houses. (Paragraph 222)
  
Collective Worship
  
77.We therefore recommend that, instead of exempting collective worship from the duty not to discriminate on grounds of religion or belief in this Bill, the Government revisit the justification for legally requiring all maintained schools to ensure that pupils participate in a daily act of Christian worship. (Paragraph 228)
  
78.We cannot see a justification for the current position that young people who are almost 17, who are recognised to be of sufficient age and maturity to be entitled to access sexual health services without their parents' knowledge, are not entitled to withdraw themselves from compulsory collective worship. (Paragraph 232)
  
79.Until such time as sufficiently robust legal safeguards are in place to ensure that religious education and collective worship in schools are approached in the objective and pluralistic spirit required by human rights law, as opportunities to reflect on moral and ethical issues and to explore the concept of belief, we remain of the view that we have consistently taken in previous reports, that children of sufficient age and maturity should have the right to withdraw from collective worship and from religious education classes. (Paragraph 233)
  
School Transport
  
80.In our view, the Government has not demonstrated the necessity for this exception from the prohibition on discrimination on grounds of religion or belief for school transport. Given this background, we therefore remain concerned that maintaining this exemption from the Equality Act duty may encourage local authorities to continue to treat those with religious and those with non-religious beliefs differently in the provision of school transport. (Paragraph 239)
  
Associations
  
81.We consider that an appropriate balance has been struck in these provisions between the right to freedom of association and the right to non-discrimination and equality. (Paragraph 241)
  
Political Parties
  
82.We reaffirm our previous conclusion and welcome both the retention of the same-sex 'shortlist' exception and the more limited powers conferred upon political parties to take measures to address other forms of disadvantage. They should have the effect of encouraging and enabling political parties to undertake a wider range of positive action to address under-representation. (Paragraph 246)
  
Prohibited Conduct: Ancillary
  
83.We welcome the strengthening of protection against discrimination in advertising and against instructions to discrimination. (Paragraph 249)
  
National Security
  
84.We recommend that the Bill be amended to make clear that an individual is entitled to make a statement before the proceedings, including on whether or not it is compatible with his Article 6 ECHR rights to exclude him from all or part of the proceedings. (Paragraph 251)
  
85.We welcome the extended powers of Employment Tribunals to make recommendations, as this should ensure a more widespread respect for the right to equality. However, we note with concern that there is no sanction for non-compliance, which may make the provision toothless in practice if employers are able to ignore a Tribunal's recommendations without the possibility of any action being taken against them. (Paragraph 252)
  
86.We are concerned by the exclusion of equal pay cases from the enhanced power to make recommendations. Equal pay cases are a source of much complex and lengthy litigation, which currently overburdens Employment Tribunals: in our view, some of this burden could be alleviated if Tribunals were able to be more prescriptive about the steps which employers should take, which would benefit not only the litigants in a case, but the wider workforce more generally. The Government states that extending the power to equal pay cases at this stage would be imprudent as there is currently no evidence of the effect that allowing such recommendations would have in practice. We therefore recommend that the Government should actively seek and publish evidence of the anticipated effects of an extension of the power to make recommendations to equal pay cases, with a view to determining whether or not future legislation is required. (Paragraph 254)
  
Representative Actions
  
87.We are pleased that the Government is considering whether to permit representative actions. We believe that this has the possibility of ensuring swifter justice for litigants and employers alike. We note that the Government intended to consult on the possibility before the summer recess but that no such consultation has been published. We recommend that the Government give urgent consideration to this issue and consult on it as a priority, with a view to amending the Bill in the House of Lords. (Paragraph 258)
  
Public Sector Equality Duty
  
88.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." (Paragraph 263)
  
89.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. 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. (Paragraph 267)
  
90.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. 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. (Paragraph 268)
  
91.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. (Paragraph 269)
  
92.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. (Paragraph 270)
  
93.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. (Paragraph 271)
  
94.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. (Paragraph 273)
  
95.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. (Paragraph 274)
  
96.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. (Paragraph 275)
  
The Definition of Public Authorities & Bodies Performing a Public Function
  
97.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. 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. (Paragraph 277)
  
98.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. (Paragraph 278)
  
99.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. (Paragraph 280)
  
Positive Action Measures
  
100.International human rights standards appear to view these types of positive action as permissible if the measures introduced are necessary, proportionate and time-limited. (Paragraph 284)
  
101.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. (Paragraph 285)
  
102.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. (Paragraph 286)
  
103.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. (Paragraph 287)
  
104.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. (Paragraph 289)
  
105.We recommend that a proportionality test be inserted into Clause 155 to better reflect the current case-law of the ECJ. (Paragraph 289)
  
106.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. (Paragraph 290)
  
Statutory Exceptions
  
107.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. (Paragraph 298)
  
108. We consider that these amendments [amendments NC27 to 29, tabled by Andrew Dismore MP, for Report Stage] deserve serious consideration. (Paragraph 298)
  
109.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). (Paragraph 306)
  
110.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. 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. (Paragraph 311)
  
111.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. (Paragraph 313)
  
112. 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. (Paragraph 315)
  
113.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. (Paragraph 319)
  
114.  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. (Paragraph 326)






 
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