Letter from Vera Baird QC, MP Solicitor
General, to the Chairman, dated 27 April 2009
EQUALITY BILL: HUMAN RIGHTS
You will have seen that Harriet Harman has made,
on the front of the Equality Bill, the statement affirming its
compatibility with the Convention rights.
We have given careful consideration to the human
rights implications of the Bill's measures. I thought it would
be helpful, given the links between equality and human rights,
to send you a separate summary of the issues which the Government
Equalities Office has identified, and which formed the basis on
which Harriet signed the statement.
I am of course happy to discuss this further
with you, if you wish.
I am placing copies of this letter and the attachment
in the House Libraries.
1. In considering the human rights implications
of this Bill, it is worth bearing in mind that the majority of
the provisions are required in order to implement the UK's obligations
under EC law. Whilst, of course, this does not obviate the need
to consider how challenges based on the European Convention of
Human Rights ("the Convention") could be brought in
relation to its provisions, it does make it less likely that those
implementing provisions will be contrary to the Convention. The
main provisions of the Bill which do NOT implement a Directive
are those which:
— Impose positive duties on public authorities
to promote equality.
— Impose a duty on public authorities to
consider socio-economic disadvantage.
— Prohibit discrimination on grounds of
religion or belief and sexual orientation in the provision of
goods, facilities and services and the disposal and management
of premises.
— Prohibit discrimination on grounds of
marriage or civil partnership at work.
— Prohibit disability discrimination in
the provision of goods, facilities and services and management
and disposal of premises.
— Prohibit discrimination in the exercise
of public functions on grounds of race, sex, disability, religion
or belief, age and sexual orientation.
— Prohibit discrimination in the provision
of goods, facilities and services on grounds of age.
— Prohibit discrimination in education
on grounds of race, sex, disability, religion or belief and sexual
orientation.
— Prohibit discrimination in relation to
private members' clubs.
2. The Bill as a whole is creating, continuing
and protecting the rights of individuals not to be discriminated
against on certain specified grounds or to suffer other treatment
related to discrimination. It is a right-enhancing piece of legislation
which protects individuals from discrimination and as such, is
very much in line with the principles of the Convention. For that
reason the main areas where challenges under the Convention are
a relevant issue are where:
— exceptions to the prohibition on discrimination
are provided for, or
— the rights to non-discrimination conflict
with each other and there is a need to balance them.
CONVENTION ARTICLES
MOST RELEVANT
TO THE
BILL
3. The Articles of the Convention which
are most relevant to the Equality Bill are Article 8 (right
to respect for private and family life), Article 9 (right
to freedom of thought, conscience and religion), Article 10 (right
to freedom of expression), Article 11 (right to freedom of
association), Article 14 (prohibits discrimination in the
field of enjoyment of rights guaranteed by the Convention) and
Article 1 of Protocol 1 (right to peaceful enjoyment
of property). As the majority of the Bill is concerned with prohibiting
discrimination it has a close affiliation with Article 14 of
the Convention. However, it is important to realise the limitations
of Article 14.
4. Article 14 is not a free-standing
right—it is tied to the other substantive rights in the
Convention. As noted in the Belgian Linguistics case,[1]
it is as if the provision is an integral part of each of the substantive
articles. So an applicant complaining of discrimination must allege
it in respect of, for example, freedom of religion or fair trial,
it is useless to invoke it in the area of employment provision
or housing provision.
5. Not all differences in treatment are
relevant for the purposes of Article 14. The applicant must be
being treated differently from those in comparable situations.
So, for example, married couples cannot validly be compared with
unmarried couples since they have chosen a particular legal regime
to govern their relations. This criteria will sometimes overlap
with consideration of whether there is a reasonable or objective
justification for different treatment.
6. Article 14 is limited to discriminatory
treatment based on a personal characteristic or status of the
person which differentiates the person or group being discriminated
against. The Article lists the obvious characteristics such as
sex, race, colour, language, religion, political or other opinion,
national or social origin etc but this list is not exhaustive
as it concludes with "or other status". The limits of
the concept of personal status have not been much discussed but
a difference resulting from geographical location has been found
not to amount to a difference in treatment on grounds of personal
status.[2]
7. Although Article 14 is not subject
to express exceptions, it has been recognised that not every difference
in treatment in the enjoyment of the protected rights and freedoms
can be prohibited. The test applied to assess whether differences
in treatment are objectionable or not is whether they are based
on objective and reasonable justification. The existence of the
justification has to be assessed in relation to the aims and effects
of the measure under consideration, regard being had to the principles
which normally prevail in democratic societies. The concepts of
legitimate aim, proportionality and the margin of appreciation
are brought in when deciding this issue. Whether there is objective
and reasonable justification will depend on the circumstances
of each situation.
8. Administrative difficulties would not
normally suffice as a justification as in Darby -v- Sweden[3]
where this was the sole basis for barring non-residents who worked
in Sweden from an exemption to church tax available to residents
in Sweden. Nor can justification for interferences with rights
be derived purely from negative attitudes that a particular minority
might arouse—see Smith and Grady -v- UK[4]
where this was rejected as a justification
for the UK' ban on homosexuals in the army. A certain allowance
is, however, given to States as regards the timing of changes
which reflect a shift in society's attitudes, as in Petrovic
-v- Austria[5]
where the court would not criticise the Austrian government for
extending parental leave to fathers as well as mothers in a gradual
manner.
EXCEPTIONS IN
THE BILL
9. Wherever the Bill provides for exceptions
to the general rule against discrimination (whether that be in
the sphere of, for example, work or the provision of goods and
services) careful consideration has been given to the impact of
such an exception on the Convention rights of individuals. Where
Convention rights are potentially engaged by these exceptions
we are satisfied that the provisions are pursuing a legitimate
aim in a proportionate manner and that the exceptions are sufficiently
tightly drawn to ensure this.
10. For example Paragraph 3 of Schedule
23 provides that different treatment of people of each sex
is, in certain circumstances, permissible in the provision of
communal accommodation or benefits linked to that accommodation.
The accommodation must be managed in a way which is as fair as
possible to both men and women. Where reasonably practicable,
in the context of Part 5 (work), arrangements to—compensate
for any discrimination must be made.
11. These provisions permit discrimination
on grounds of sex and so Article 14 (read with Article 8)
is engaged. These provisions of the Bill enable the provision
of communal accommodation to people of a particular sex in a way
that is appropriate and compatible with Convention rights by clearly
defining the circumstances in which this is permissible. This
is because they pursue the legitimate aim of protecting the person's
privacy when they may be in a state of undress or in terms of
using associated bathroom facilities and the limited grounds on
which different treatment is permitted are proportionate means
to achieving such aims. Thus any interference with rights under
Article 14 is justified.
12. An exception which is of particular
interest in the human rights context is the exception for religious
organisations (at paragraph 2 of Schedule 23) from the prohibition
on discrimination in the provision of services in clause 27 of
the Bill. This exception relates both to discrimination on grounds
of religion or belief and discrimination on grounds of sexual
orientation. Dealing first with the religion or belief element
of the exception, this ensures that the work of religious bodies
providing welfare services to their particular community is not
affected by the general prohibition on religious discrimination
in the provision of services. It also permits the continuation
of groups that come together to allow those of a particular religion
or belief to share experiences and to discuss issues. The exception
therefore allows for anything from a bible study group restricted
to Christians to a lunch club for elderly Hindus or a Catholic
retreat centre which only allows Catholics to use its services
(provided that none of these organisations have a sole or main
purpose which is commercial). We consider that this exception,
in allowing individuals of a particular religion or belief to
come together to associate or to receive a particular service,
in fact upholds the Article 11 rights of those individuals,
as well as of the religious organisation.
13. Whether or not the exception for religious
organisations interferes with the rights of others will depend
on the particular circumstances of the case. For example, the
exclusion of a Muslim from the Hindu lunch club is unlikely to
interfere with the Muslim's right to respect for private life
or his freedom of religion. To the extent that there is any such
interference, we consider it to be justified as being necessary
in order to protect the Article 9 and 11 rights of the
organisations and their adherents.
14. The exception for religious organisations
which would allow for them to discriminate on the basis of sexual
orientation is more narrowly drawn than the exception for discrimination
on the basis of religion or belief. The religion or belief exception
allows action which would otherwise be unlawful, provided that
the limitation is imposed to comply with the tenets of the organisation
or to avoid causing offence on religious grounds to a significant
number of persons of the religion to which the organisation relates.
In other words, if the purpose of the organisation is to provide
lunch to Hindu elders, then restriction of the provision of lunch
to Hindu elders will be permitted irrespective of whether or not
the tenets of Hinduism require that Hindus should only help out
fellow Hindus. However, to benefit from the exception to the prohibition
of discrimination on the basis of sexual orientation, it must
be shown that the restriction is necessary to comply with the
doctrine of the organisation or to avoid conflict with the strongly
held religious convictions of a significant number of the religion's
followers.
15. It might be contended that in drawing
the exception regarding religion or belief more widely than that
for sexual orientation, we are giving less weight to the rights
of those of a particular religion or belief (different from that
of the religious organisation) than to those of a particular sexual
orientation. For example, why should it be lawful for a Protestant
to be refused the services of a Catholic adoption agency but not
for a (Catholic) homosexual? Ultimately, the reason for drawing
the balance at a different point is that, under the religion or
belief exception, it is open for religious organisations to be
ecumenical if they so choose (ie for the Catholic adoption agency
to offer its services to prospective parents whatever their religion
or indeed lack of religion) but we consider that, in order not
to infringe the Article 9 and 11 rights of such organisations,
we should not impose on them a requirement to be ecumenical. However,
in relation to the sexual orientation exception, we do not consider
it to be justified for a religious organisation to discriminate
on the basis of a person's sexual orientation unless it can be
clearly established that it is intimately linked to the practice
of the religion ie required by the tenets of the religion or of
considerable importance to the religion's followers.
16. It should be noted that the equivalent
legislation in Northern Ireland to the Equality Act (Sexual Orientation)
Regulations 2007 was the subject of a judicial review brought
by seven different Christian organisations: The Christian Institute
and Others re Application for Judicial Review.[6]
The application was unsuccessful regarding the claim that the
Northern Ireland Regulations were in breach of the applicants'
Convention rights. The judge accepted the argument that he could
not pronounce on the compatibility of the Regulations with the
Convention in the abstract but that the Regulations would need
to be examined on a case-by-case basis.
BALANCING COMPETING
RIGHTS
17. The Bill balances competing rights throughout
as is demonstrated by clause 96 and the exception to it at
Schedule 16 and the way in which this would apply where a
woman was denied membership of a men-only club. Her Article 11 and
8 (read together with Article 14) rights would be in direct
conflict with the Article 11 rights of the male members of
the club. Where there is such a conflict between competing interests,
states must find a fair and proper balance [Associated Society
of Locomotive Engineers and Fireman (ASLEF) v United Kingdom[7]
§ 46]. We believe that the general prohibition on discrimination
in this area, at the same time as allowing single characteristic
clubs to continue, does indeed strike the correct balance. It
ensures that, while the ability of a person to become a member
of a particular association should not, in general, be dependent
on their having a particular protected characteristic, individuals
and associations can still choose to associate with or limit their
membership to those who share a particular protected characteristic.
Thus, for example, while a woman may wish to become a member of
the Garrick club but is prevented from doing so by virtue of the
club being lawfully able under Schedule 16 to limit membership
to men only, she is free to apply for membership of other literary
clubs which are open to both men and women on equal terms. We
consider that this availability of other venues ensures that the
restriction on her Article 11 rights, as prescribed by law,
is proportionate to the legitimate aim of protecting the Article
11 rights of others who would wish to join men-only clubs.
For similar reasons, we consider that there is no violation of
Article 14 since any difference in treatment is proportionate
to the legitimate aim of protecting the rights and freedoms of
others.
HARASSMENT
18. Clause 24 [j080] provides the definition
of harassment. The clause does not have free-standing effect,
but attaches to conduct in particular areas covered by the Bill,
for example, in the area of work. There are three forms of harassment.
Subsections (1)(a) and (2) state that harassment occurs where
a person engages in unwanted conduct related to a relevant protected
characteristic (set out in subsection (5)) which has the purpose
or effect of violating another's dignity or creating an intimidating,
hostile, degrading, humiliating or offensive environment for that
person. As it covers unintentional conduct (purpose or effect),
subsection (3) states that in deciding whether the conduct has
this effect the courts must take into account the victim's perception,
the other circumstances of the case and whether it is reasonable
for the conduct to have this effect. Subsection (1)(b) defines
sexual harassment—that is, harassment that is of a sexual
nature rather than being related to gender. The latter would be
covered under subsection (1)(a) (for example, calling a woman
a "bimbo") while the former covers conduct such as inappropriate
touching and comments of a sexual nature. The definition refers
to any form of unwanted verbal, non-verbal or physical conduct
of a sexual nature that has the purpose or effect of violating
a person's dignity or creating an intimidating, hostile, degrading,
humiliating or offensive environment. The test in subsection (3)
also applies to this definition. The third type of harassment
is set out at subsection (1)(c) and arises where a person is treated
less favourably because they have either submitted to or rejected
the unwanted conduct.
19. The harassment provisions have been
controversial in respect of certain protected characteristics
(namely, religion or belief, sexual orientation and gender reassignment)
and opponents have been concerned that the very broad definition
of harassment in relation to these characteristics could infringe
Article 9 and Article 10 Convention rights.
20. There is currently harassment protection
in all areas of discrimination law except for harassment on grounds
of religion or belief, sexual orientation and disability outside
the work place. There is currently no prohibition on age discrimination
or harassment on grounds of age outside the workplace. There is
no EC discrimination law in these areas—although a draft
Directive is currently being negotiated which, if adopted, would
oblige States to prohibit harassment in these areas.
21. The Government has decided not to extend
freestanding harassment protection related to sexual orientation
and religion or belief outside the workplace and institutions
of further and higher education (where there are EC obligations).
PUBLIC SECTOR
DUTY AND
SOCIO-ECONOMIC
DUTY
22. The two main areas of the Bill which
do not involve implementation of EC law, the imposition of a public
sector equality duty and the socio-economic duty, do not give
rise to any human rights issues as they impose requirements only
on public authorities.
1 1 EHRR 252 Back
2
Magee -v- UK 6 June 2000, ECHR 2000-VI Back
3
13 EHRR 774 Back
4
29EHRR 493 Back
5
27 March 1998, RJD, 1998 II Back
6
[2007] NIQB 66 Back
7
Application no. 11002/05; decision 27.2.2007 Back
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