Memorandum submitted by the Government
Equalities Office
OFFICIALS' MEETING
WITH THE
JOINT COMMITTEE
ON HUMAN
RIGHTS: FOLLOW
UP
Thank you for the recent opportunity to speak
with the Committee about the Equality Bill.
As promised, I am following up with information
on a number of points raised by the Committee which we were unable
to fully answer during the meeting.
Lord Onslow asked how many new criminal offences
will be created by the Bill.
There is one new criminal offence created on
the face of the Bill, at clause 104. Clause 104 deals with
the liability of employees and agents for contraventions of the
Bill and includes an offence which is committed by an employer
or principal if they knowingly or recklessly tell their employee
or agent that an act is not a contravention of the Bill. This
is similar to the provision at clause 106 on aiding contraventions
of the Bill, which combines the effect of provisions in several
pieces of legislation in one clause.
There is also the power to create a new offence
in regulations made under clause 73 (gender pay gap reporting).
The power at clause 73 allows some flexibility on the method
of enforcing regulations made under that power; they could be
enforced by criminal penalty or by such other means as is prescribed,
for example a scheme of civil penalties.
There are some other criminal offences contained
in Part 12 and Schedule 20 of the Bill, dealing with
the accessibility of transport for disabled people, which will
come into force for the first time when the Bill is commenced
and so are new to that extent. The offence provisions at clause
154 and paragraph 13 of Schedule 20 replicate the
effect of provisions in the Disability Discrimination Act 1995 which
have not been commenced.
Evan Harris MP asked why Part 2 of the
Equality Act 2006 did not contain an explicit public funding
carve-out from the exception for religious organisations, and
therefore why such a provision is not in the new Bill.
The Equality Act (Sexual Orientation) 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 the religious
beliefs held by some people, 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.
The provisions contained in Schedule 23 of
the Equality Bill replicate the position under existing legislation
with regard to the exceptions for religious organisations.
We said that we would pass back to the Committee
Clerk some information on what happened to the Northern Ireland
harassment provisions on sexual orientation—did they amend
them, following the judicial review?
The Equality Act (Sexual Orientation) Regulations
(Northern Ireland) 2006 came into force on 1 January
2007. They were subject to an application for judicial review
by various Christian organisations. In September 2007, Mr Justice
Weatherup quashed the harassment provisions in the Regulations
(Re Christian Institute and others' application for judicial
review [2007] NIQB 66).
He stated (paragraph 43): "I have found
an absence of proper consultation on the harassment provisions.
By reason of that finding and of the extended reach of the harassment
provisions beyond that of discrimination and statutory harassment,
the wider definition of harassment than that appearing in the
European Directive, the concerns of the Joint Committee and the
added consideration required when the offending matter is grounded
in religious belief, the harassment provisions in the Regulations
will be quashed."
The Equality Commission for NI indicated in
its guidance (published in September 2008) that there will be
legislation amending the Regulations in order to give effect to
the Judicial Review. However, no amending legislation has so far
been brought forward. The purpose of amending the legislation
would be to make it clear on the face of it what the law actually
is, since at the moment the Regulations contain provisions that
have no legal effect.
Lord Lester asked for confirmation that the
Bill contains no mechanism like the Central Arbitration Committee
to provide collective remedies in Equal Pay cases.
The Government did not consult on the possibility
of a new arbitration process in its review of discrimination law.
Nor is there anything of this kind in the Bill at present. Nevertheless,
any proposal to speed up the administration of justice and progress
toward pay equality is interesting, and we and BERR, which is
the lead Department in respect of Dispute Resolution, will consider
any such proposals carefully. This is a complex area and we will
need to consider in particular the potential impact of the proposal
on the number and length of cases which proceed through the Tribunals,
the capacity of the arbitrator/s to undertake the task, and compatibility
of the process with European Law—particularly compatibility
of any process which may seek to limit or restrict an individual's
right to bring a claim for equal pay.
The Government is not making provision for representative
actions in the Equality Bill. As representative actions would
be a new departure for Great Britain, we consider it important
that we fully apprise ourselves of the possible impact, before
legislating. We are therefore analysing the review undertaken
by the Civil Justice Council, an advisory body to the Ministry
of Justice, which was published at the end of 2008. Any proposals
for reforming this area of the law would then be subject to a
consultation.
I hope this clarifies the outstanding points
from our meeting of 5 May. Please contact me if you require
any further information.
| 
