Memorandum submitted by Government Equalities
Office
INTRODUCTION
1. Section 19 of the Human Rights Act
1998 ("the HRA 1998") requires a Minister to make
a written statement prior to Second Reading, as to the compatibility
of the provisions of the Bill with the European Convention on
Human Rights ("the Convention"). The purpose of this
memorandum is to analyse the issues arising from the Equality
Bill ("the Bill") in relation to assessing its compatibility
with the Convention.
2. The provisions of the Bill are compatible
with the Convention and the Minister has made a statement of compatibility
under section 19(1)(a) of the HRA 1998 to the effect that
in her view the provisions in the Bill are compatible with Convention
rights.
3. The structure of this memorandum is as
follows:
Paragraphs 4-32: summary of the Bill
Paragraphs 33-37: considerations of general application
throughout the Bill
Paragraphs 38-73: analysis of Articles most frequently
engaged by the Bill's provisions
Paragraphs 74 onwards: consideration of
issues arising from specific clauses, following the scheme of
the Bill. Most consideration is given to issues raised by Part
3 (prohibition of discrimination in the provision of goods,
facilities and services and the exercise of public functions)
and Part 5 (prohibition of discrimination in the field of
work).
4. SUMMARY OF
THE BILL
The main purposes of the Bill are:
— To harmonise and simplify the law on
discrimination.
— To extend coverage of the public sector
duty across all the protected characteristics and unify them into
one single equality duty.
— To permit more measures which are designed
to redress under-representation and disadvantage amongst those
with protected characteristics ie more positive action.
— To reinstate protection along the lines
of disability-related discrimination and extend indirect discrimination
to disability.
— To extend protection from discrimination
against a person associated with someone who has a protected characteristic
or against a person who is perceived to have a protected characteristic.
— To prohibit unjustifiable age discrimination
in the provision of goods, facilities and services for people
aged 18 or over.
— To impose a new duty on certain public
authorities to consider socio-economic disadvantage in their strategic
decision-making.
— To increase the protection on grounds
of gender reassignment so that it is on a par with other protected
characteristics.
— To provide consistent protection for
all protected characteristics against harassment of an employee
by a third party.
— To prohibit discrimination and harassment
in private clubs and associations.
5. The structure of the Bill is to set out
the key concepts in Part 2, such as the definitions of direct
and indirect discrimination, and then in the following Parts to
set out the circumstances in which discrimination is forbidden,
eg Part 5 deals with the field of "work". In relation
to particular fields, some of the protected characteristics are
not protected eg the provisions on schools in Part 6 do not
apply to age.
6. These are followed by Parts covering
the promotion of equality, enforcement, enforceability of contracts
and exceptions. Part 1 of the Bill imposes a duty to consider
socio-economic disadvantage on specified public authorities. There
are 28 Schedules to the Bill and, as a number of these deal
with exceptions to the general prohibitions against discrimination,
they contain quite a number of the provisions which could engage
rights under the Convention. Throughout this memorandum we have
considered the Schedules along with the clauses in the Bill which
bring them into effect.
Part 1
7. This Part imposes a duty on specified
public authorities to consider socio-economic disadvantage.
Part 2 and Schedule 1
8. This Part sets out, at clauses 4 to
12, the characteristics which are protected under the Bill, such
as disability and sex, and in some cases defines them. In other
cases, where definition is unnecessary, it makes clear how a reference
to a particular characteristic is to be read.
9. This Part also defines the types of prohibited
conduct under the Bill:
— direct discrimination (clause 13)
— discrimination arising from disability
(clause 14)
— indirect discrimination (clause 18)
— victimisation (clause 25)
10. Clauses 19 to 21 set out the
duty to make reasonable adjustments in relation to a person with
a disability and related matters.
11. Schedule 1 makes provision about
what constitutes disability for the purposes of the Bill.
Part 3 and Schedules 2, 3 and 23
12. This Part makes it unlawful for a service
provider to do anything which constitutes discrimination, harassment
or victimisation in their provision of a service or their refusal
to provide a service. It further provides that it is unlawful
for anyone exercising a public function to do anything which constitutes
discrimination, victimisation or harassment.
13. Schedule 2 supplements duties imposed
by various clauses to make reasonable adjustments for disabled
persons in specified circumstances. Schedule 3 sets out various
specific circumstances in which some or all of the prohibitions
on discrimination or harassment do not apply eg the circumstances
in which it is permissible to provide a service only to persons
of one sex.
14. Schedule 23 also sets out various
exceptions to the prohibitions in Part 4 (as well as other
Parts).
Part 4 and Schedules 4 and 5
15. Part 4 is concerned with premises
and it contains provision prohibiting discrimination in the disposal
and management of premises. Schedule 4 contains a duty to
make reasonable adjustments to assist disabled people to use the
common parts of certain residential premises in certain circumstances.
Schedule 5 contains the exceptions to the general prohibition
in Part 4.
Part 5 and Schedules 6-9
16. This Part is concerned with the prohibition
of discrimination in work situations, which is wider than the
employment relationship. As well as prohibiting discrimination,
harassment and victimisation in the work sphere (clauses 37-41),
it goes on to cover:
— partners (clauses 42-44)
— the Bar (clauses 45-46)
— office-holders (clauses 47-50),
— qualifications bodies (clauses 51-52)
— employment services (clauses 53-54)
— trade organisations (clause 55) and
— local authority members (clauses 56-57).
17. Part 5 also makes provision with
regard to equal pay (clauses 60-76), implying a sex equality clause
into the terms of employment of a man and woman in the same employment
doing equal work unless any difference in terms can be justified
by a genuine material factor. Similar provision is made for occupational
pension schemes, implying a sex equality rule into the scheme
rules. It also deals with discrimination in relation to occupational
pension schemes by implying into such schemes a non-discrimination
rule (clauses 58-59).
18. Schedule 6 sets out the offices
which do not constitute office-holders for purposes of Part 5 and
are therefore excluded from its operation. Schedule 7 sets
out the situations which are excepted from the implication of
a sex equality clause and a sex equality rule. Schedule 8 deals
with making reasonable adjustments in relation to a person's disability
at work. Schedule 9 contains exceptions from the prohibition
against discrimination at work.
Part 6 and Schedules 10-14
19. Part 6 makes it unlawful for a
school's responsible body to discriminate in relation to some
of the protected characteristics when making decisions on various
matters such as admissions and exclusions. Similar provisions
apply in relation to further and higher education institutions
and to general qualifications bodies in relation to the conferring
of qualifications.
20. Schedule 10 deals with accessibility
for disabled pupils. Schedule 11 sets out the exceptions
to the general prohibitions in relation to sex discrimination,
religion or belief-related discrimination and disability discrimination.
Schedule 12 deals with further and higher education exceptions.
Schedule 13 deals with reasonable adjustments in educational
establishments. Schedule 14 makes provision in relation to
educational charities and endowments
Part 7 and Schedules 15 and 16
21. Part 7 prohibits private members'
clubs from discriminating against or victimising or harassing
their members and guests on relevant protected characteristic
grounds in various ways eg by refusing to accept a person's application
for membership.
22. Schedule 15 deals with reasonable
adjustments in private clubs. Schedule 16 provides exceptions
to the general prohibitions on clubs set out by Part 7.
Part 8
23. Part 8 makes provision in relation
to matters connected with prohibited conduct such as discrimination
arising after a relationship has ended or aiding or instructing
another to discriminate unlawfully.
Part 9 and Schedule 17
24. Part 9 sets out how rights given
under the Bill (except in relation to rail vehicle accessibility,
Chapter 3 of Part 12) are to be enforced. It deals with which
types of claim can be brought in the civil courts and which in
the employment tribunals, what remedies are available and various
other procedural matters relating to enforcement.
25. Schedule 17 makes provision for
enforcement of the rights of disabled pupils in schools through
specialist tribunals.
Part 10
26. This Part deals with the extent to which
terms of contracts, collective agreements and rules of undertakings
are made unenforceable or void where they contain a provision
which conflicts with the prohibitions under the Bill.
Part 11 and Schedules 18 and 19
27. The first Chapter of Part 11 deals
with the duties imposed on public authorities to comply with the
equality principles including promoting equality of opportunity
for all. A public authority is a person caught by the list in
Schedule 19. Schedule 18 sets out exceptions from the public
sector equality duty.
28. The second Chapter of Part 11 provides
that a person may take positive action in certain circumstances
to alleviate disadvantage arising as a result of a protected characteristic.
Part 12 and Schedule 20
29. This Part and Schedule 20 make
provision for the requirements that apply in relation to access
for disabled persons to various different types of transport.
Part 13 and Schedule 21
30. This Part and Schedule 21 make
further provision about reasonable adjustments in relation to
disabled people.
Part 14 and Schedules 22 and 23
31. This Part and the Schedules together
set out the most wide-ranging exceptions in the Bill, which prevent
various activities from being unlawful discrimination in certain
circumstances e.g permitting sporting activity to be divided between
the sexes.
Part 15
32. This Part contains general provision
about application, powers to make subordinate legislation and
interpretation.
CONSIDERATIONS OF
GENERAL APPLICATION
THROUGHOUT THE
BILL
33. A large proportion of the Bill re-enacts
previously existing discrimination legislation. At present the
legislation is divided up to deal with the various protected characteristics
separately eg the Sex Discrimination Act 1975 ("the
SDA 1975"), the Race Relations Act 1976 ("the RRA
1976") and the Employment Equality (Sexual Orientation) Regulations
2003. The Bill harmonises all the various protections available
against discrimination into one coherent scheme. As a result of
this change in treatment, the legislation may look quite different
from the legislation that it replaces, but in many instances,
the underlying substance of the right to non-discrimination is
unchanged.
34. Quite a large proportion of the legislation
that is being re-enacted was brought into force after commencement
of the HRA 1998 and therefore previous consideration has
been given to its compliance with the Convention. In some instances
the Bill replaces primary legislation and in others it replaces
secondary legislation (albeit often made under section 2(2) of
the European Communities Act 1972 and amending primary legislation).
The level of scrutiny for compliance with Convention rights received
by the prior legislation depends on whether it was primary or
secondary legislation.
35. In the section below which analyses
the application of Convention rights to specific clauses of the
Bill this memorandum states, where relevant, that the clause is
re-enacting a previously existing provision in order to highlight
two things:
— The pre-existence of the provision means
that the human rights considerations in that part of the memorandum
are less speculative than in the case of truly "new"
legislative provisions; and
— Where the previous legislation was made
after the commencement of the HRA 1998, previous consideration
of the provision's compliance with the Convention has been carried
out, so this memorandum is briefer in its analysis of the potential
challenges under the Convention. However, where the previous legislation
was secondary, there is not as great a reduction in length of
analysis because there has been less earlier scrutiny.
36. 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 a Convention right 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.
37. 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 could
be a realistic prospect 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.
Analysis of the Articles most frequently engaged
by the Bill's provisions
38. In order to avoid repetition of the
analysis of the Convention Articles which are engaged most frequently
by the Bill's provisions, some analysis is provided here and not
repeated in the consideration of the Bill's provisions.
Article 8
39. Article 8(1) provides that everyone
has the right to respect for his private and family life, his
home and his correspondence. The aspects of most relevance to
the provisions in the Bill are respect for private life and for
family life. The case-law does not provide an exhaustive definition
of "private life" but it is possible to draw from the
case-law an indication of the areas which the concept covers.
So, for example it covers aspects of an individual's physical
and moral integrity. The case establishing this principle was
X and Y -v- Netherlands[8]
where Y, who was mentally handicapped, was raped but had no legal
capacity to appeal against the decision of the prosecution not
to pursue criminal charges and her father had no standing to do
so on her behalf. The Court found that civil law remedies offered
insufficient protection in cases of wrongdoing of this kind and
that the criminal law suffered from a deficiency regarding Y which
disclosed a lack of respect for her private life.
40. The concept of "respect for private
life" also includes the privacy of an individual, protection
of their personal data, an individual's reputation and their personal
identity. Of particular relevance to the Bill, given that it prohibits
discrimination because of sexual orientation or gender reassignment,
are the line of cases which establish that a person's sexual life
is an important aspect of private life and comes within the ambit
of Article 8. Dudgeon -v- UK[9]
established the important principle that private sexual conduct,
which is a vital element of an individual's personal sphere, cannot
be prohibited merely because it may shock or offend others. In
such an intimate aspect of private life, there must exist particularly
serious reasons before interferences can be justified.
41. Whilst Article 8 is potentially
very wide, the courts, both here and in Strasbourg, have limited
how far they are willing to extend its scope into all aspects
of an individual's life. The speech of Baroness Hale in the fox
hunting case—R -v- Her Majesty's Attorney General &
Anr ex parte Countryside Allicance & Others[10]
contains a very helpful consideration of the scope of Article
8. At paragraph 115 she said:
42. "The right to respect for our private
and family life, our homes and our correspondence, guaranteed
by Article 8, is the right most capable of being expanded to cover
everything that anyone might want to do. My noble and learned
friend Lord Rodger of Earlsferry, has made a powerful case for
Article 8 to include almost any activity which is taken sufficiently
seriously by the people who engage in it……."
She continued at paragraph 116
"As yet, however, as my noble and learned
friend Lord Bingham of Cornhill has shown, the Strasburg jurisprudence
has not gone so far in its interpretation of the rights protected
by Article 8; and for the reasons given above I am not sure that
I share the desire of my noble and learned friend Lord Brown of
Eaton-under-Heywood that it should. Article 8, it seems to me,
reflects two separate but related fundamental values. One is the
inviolability of the home and personal communications from official
snooping, entry and interference without a very good reason. It
protects a private space, whether in a building, or through the
post, the telephone lines, the airways or the ether, within which
people can both be themselves and communicate privately with one
another. The other is the inviolability of a different kind of
space, the personal and psychological space within which each
individual develops his or her own sense of self in relationships
of other people. This is fundamentally what families are for and
why democracies value family life so highly………
Article 8 protects the private space, both physical and psychological
within which individuals can develop and relate to others around
them. But that falls some way short of protecting everything they
might want to do even in that private space; and it certainly
does not protect things that they can 'only' do by leaving it
and engaging in a very public gathering and activity."
43. It is important to note that Article
8 is a qualified right. It is qualified by Article 8(2) which
requires interference with this right to be necessary on the following
grounds
— Public safety or economic well-being
of the country.
— Prevention of disorder or crime.
— Protection of health or morals.
— Protection of the rights and freedoms
of others.
44. Any interference must also be shown
to be proportionate to the justification which is put forward
for that interference. This requires that there is a reasonable
relation between the goal pursued and the means used. It is also
used in the sense of finding a balance between the applicant's
interests and those of the community. The issue of whether the
State could achieve the goal in another way may be relevant when
considering proportionality but it can only go so far. Since the
Convention is not setting ideal standards, it is not enough to
establish a violation that, for example, other methods could be
used or are used in another State. The method used must fail the
proportionality test and fall outside the margin of appreciation
having regard to the particular circumstances of the case. The
further qualification which is worth noting is that Article 8(1)
is couched in terms of the right to respect rather than
a more absolute right.
45. In order to comply with the Convention
a Contracting State must not only restrict its interferences to
what is compatible with Article 8, but may, in some circumstances,
be required to take steps to secure respect for an individual's
Article 8 rights. The extent to which a State may be under
such a positive obligation will vary with the differing situations
between States which enjoy in this respect a wide margin of appreciation.
Insofar as positive obligations are concerned, the Court has indicated
that the notion of "respect" is not clear cut. It has
stated that a fair balance must be struck between the interests
of the individual and those of the community and in striking that
balance, the aims referred to in the second paragraphs may be
relevant.[11]
46. The cases illustrate that the impact
on the applicant's rights must be serious and significant as in
X and Y -v- Netherlands or Gaskin -v- UK[12]
where fundamental values and essential aspects of private life
or identity were concerned. No positive obligation was found in
Costello-Robberts -v- UK[13]
which concerned the application of corporal punishment to a pupil
at school because the chastisement was minor. Whether an important
State interest is involved may also be significant eg Abdulaziz
-v- UK where vital State interests in immigration were concerned.
Article 9
47. Article 9(1) provides that everyone
has the right to freedom of thought, conscience and religion.
Article 9(2) provides that freedom to manifest one's religion
or beliefs shall be subject only to such limitations as meet the
criteria in that provision. There has been little detailed discussion
in the cases of the nature of the beliefs or principles which
fall within the scope of Article 9. The validity of most religions
raising complaints has been accepted but its scope has been limited
in relation to "beliefs" to the extent that the Article
has been held not to cover mere idealistic activities such as
the stance taken by IRA prisoners with regard to "special
category status".
48. What counts as "manifesting"
a religion or belief has been limited by the courts so that it
does not cover each act which is motivated or influenced by a
religion or belief. What are protected are acts intimately linked
to beliefs or creeds such as acts of worship and devotion which
are the aspects of the practice of a religion or belief in a generally
recognised form. For example marriage, though considered desirable
for Muslims, cannot be regarded as a form of expression of that
religion. On the other side of the line kosher diet has been held
to be a form of manifesting the Jewish religion.
49. Measures which prevent a person from
manifesting his belief in a way that is recognised under Article
9 or penalising him for doing so will generally constitute
a limitation with the person's right which will require justification.
However, where an applicant's beliefs conflict with contractual
and employment conditions the approach adopted has been to find
that the resulting dismissal does not necessarily interfere with
the manifestation of religion. In Dahlab -v- Switzerland[14]
the Court held that it was justifiable to prohibit a primary school
teacher from wearing a headscarf as it was a powerful external
symbol that could have a proselytising effect and was not easily
reconcilable with the messages of tolerance, respect, equality
and non-discrimination that teachers in a democratic society should
convey to pupils.
50. Requirements to act in a particular
way will also not necessarily constitute an interference with
Article 9 rights notwithstanding the person's objection to
them on grounds of principle. For example in Valsamis -v- Greece,[15]
where a child Jehovah's Witness was suspended from school for
failure to participate in a procession with her school on a Greek
national day, it was considered that the obligation to take part
in the school parade was not an interference with her right to
freedom of religion. This case seems to show that the offensiveness
of a particular measure to religious beliefs must meet a certain
threshold of seriousness.
51. Where the State imposes restrictions
on manifestations of belief these may be justified if they are
prescribed by law and necessary on one of the following grounds:
— Interests of public safety.
— Protection of public order, health or
morals.
— Protection of the rights and freedoms
of others.
52. The aim of protecting public safety
was found to justify requiring a Sikh to remove his turban at
an airport, the Court commenting in response to the argument that
the applicant could have been checked by other means, that the
means lay within the State's margin of appreciation.[16]
The exercise that the court must carry out is to decide whether
the means are proportionate to the aim of the interference.
53. In the case of Serif -v- Greece[17]
the court said that while States have a legitimate interest in
preventing tension in religious communities and in taking steps
to protect those whose legal relationships can be affected by
the acts of religious ministers, their interventions should be
guided by the principle of pluralism and aimed to ensure that
competing groups tolerated each other rather than to seek to eliminate
one or the other.
54. Positive obligations may arise requiring
the State to take steps to protect the exercise of religious freedom
from others. A violation of Article 9 arose where the authorities
failed to take any steps against a fanatical group that had attacked
a congregation of Jehovah's Witnesses.[18]
As regards differing levels of protection inbuilt into domestic
law, the Commission found the law of blasphemy an acceptable means
of protecting the religious feelings of offended Christians. However
it rejected complaints of an applicant Muslim that the inability
to prosecute blasphemous attacks on the Islamic faith was contrary
to Article 9 and disclosed discrimination contrary to Article
14 as such protection was only available to Christians. The
Commission considered that the Government could not be said to
have interfered in the applicant's right to manifest his beliefs
and that Article 9 did not guarantee a right to bring proceedings
against publishers of works that offended the sensitivities of
any individual or group. Thus the discrimination complaint was
rejected as Article 9 was not engaged and there was no need
to rule on whether it was justified to favour the religious feelings
of one group more than another.
Article 11
55. Article 11 guarantees the right
to freedom of peaceful assembly and to freedom of association
with others and is particularly relevant to the provisions of
the Bill on associations and those which relate to trade unions.
Professional and other associations established by the State and
governed by public law in principle fall outside the scope of
this provision, since such associations are part of the regulatory
framework and act in the public interest to ensure the maintenance
of professional standards.[19]
56. The provisions in the Bill are concerned
with prohibiting discrimination in the formation of associations
and the admission of guests to association events and premises.
Therefore Article 11 is mainly engaged in relation to the
Bill in conjunction with Article 14 which is considered in
more detail below.
57. The Bill makes special provision to
prohibit discrimination in relation to trade organisations which
include trade unions. The Court has recognised trade union freedom
as a special aspect of the freedom of association but it has not
found that the Convention guarantees any particular treatment
of trade unions or their members by the State. Article 11 is
a qualified right and interference with it is permitted in the
interests of national security or public safety, for the protection
of health or morals or for the protection of the rights and freedoms
of others.
58. The extent to which the Court has been
prepared to countenance interference with Article 11 rights
has been very dependent on the type of association with which
a case is concerned. So the Court has imposed high hurdles in
relation to interfering with political parties' freedom of association,
In view of the essential role played by political parties in the
proper functioning of democracy the exceptions set out in Article
11 are, where political parties are concerned, to be construed
strictly. Thus in United Communist Party -v- Turkey[20]
the Court found that the reference in the Party's constitution
to the Kurdish problem, perceived by the Government as a threat
to the State's territorial integrity, did not justify the dissolution
of the party.
59. However, in relation to trade unions
the Court has been much more willing to give States a wide margin
of appreciation in how they deal with and balance the rights involved.
For example in Gustafsson -v- Sweden[21]
the Court refer to the wide margin of appreciation, noting the
sensitive character of the social and political issues involved
and the wide divergence of practice in Contracting States.
Article 14
60. Article 14 prohibits discrimination
but only in the limited field of enjoyment of one of the rights
guaranteed under the Convention. According to the case law, an
applicant must establish that he is subject to a difference in
treatment from others in a comparable position, in the enjoyment
of those rights, which difference cannot be objectively and reasonably
justified having regard to the applicable margin of appreciation.
61. 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,[22]
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 the right
to a fair trial, it is useless to invoke it in the area of employment
provision or housing provision.
62. 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. These criteria will sometimes overlap
with consideration of whether there is a reasonable or objective
justification for different treatment.
63. It could be argued that Article 14 is
engaged by the various provisions in the Bill which provide for
differing levels of protection in relation to different protected
characteristics. For example protection from harassment outside
the workplace is not prohibited in relation to sexual orientation
and religion and belief but it is prohibited in relation to race,
sex and disability. However, it is considered unlikely that two
groups with different personal characteristics could be properly
compared under Article 14. A disabled person is not in a comparable
situation to a lesbian when considering whether she has been discriminated
against for the purposes of Article 14. The Article states that
it is discrimination on any ground such as sex, race etc
and giving different levels of protection in some circumstances
to different protected groups does not amount to discrimination
on the ground of their protected characteristic. To show that
they have been discriminated against on that ground it is necessary
to compare them to a person who does not share their protected
characteristic eg a non-disabled person or a heterosexual person.
64. 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.[23]
65. 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.
66. Administrative difficulties would not
normally suffice as a justification as in Darby -v- Sweden[24]
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[25]
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[26]
where the court would not criticise the Austrian government for
extending parental leave to fathers as well as mothers in a gradual
manner.
Article 1 of Protocol 1
67. A1P1 provides a general right to
peaceful enjoyment of possessions. The Court has said that the
articles comprises three distinct but related rules:
68. "The first rule, which is of a
general nature, enounces the principle of peaceful enjoyment of
property, it is set out in the first sentence of the first paragraph.
The second rule covers deprivation of possessions and subjects
it to certain conditions; it appears in the second sentence of
the same paragraph. The third recognises that the States are entitled,
amongst other things to control the use of property in accordance
with the general interest, by enforcing such laws as they deem
necessary for the purpose, it is contained in the second paragraph."
69. Interference with property, whether
expropriation or control of use, will generally be justified if
it respects the requirement of lawfulness and can be regarded
as pursuing the general or public interest. The Court has imported
a requirement of proportionality and the requirement to strike
a fair balance between the demands of the community and the protection
of the individual's interests.[27]
The possibility of the individual obtaining compensation is an
important element in assessing whether the individual bears excessive
burden. General and public interest is given a wide meaning and
where the legislature intervenes in an area of economic or social
policy, the Court will respect the State's assessment unless manifestly
without reasonable foundation. Adequate procedural protection
of the applicant's interests in proceedings decisive for property
rights is also a relevant factor in assessing whether a fair balance
has been struck.
70. The measures in the Bill which potentially
engage A1P1 fall within the second paragraph of the Article
because they control the use of property rather than depriving
the owner of it. In this area the case law has emphasised the
need to secure a fair balance between the individual interest
and the general interest, although it has been acknowledged that
a wide margin or appreciation will be accorded to States. In the
case of Chassagnou and others -v- France[28]
the Court said:
71. "The search for this balance is
reflected in the structure of Article 1 as a whole, and therefore
also in the second paragraph thereof: there must be a reasonable
relationship of proportionality between the means employed and
the aim pursued. In determining whether this requirement is met,
the Court recognises that the State enjoys a wide margin of appreciation
with regard both to choosing the means of enforcement and to ascertaining
whether the consequences of enforcement are justified in the general
interest for the purpose of achieving the object of the law in
question."
72. In the case of Spadea and Scalabrino
-v- Italy[29]
the Italian system of postponing the enforcement of eviction orders
in order to avoid an upsurge in tenants having to find alternative
homes because of the large number of leases that expired in 1982 and
1983 was challenged. The Court concluded that the system
operated as a control on the use of the property by the freeholders
but accepted that the legislation authorizing the delays in the
enforcement of the eviction orders served the social purposes
of protecting tenants on low incomes and of avoiding a risk of
public disorder. A fair balance had been struck except in some
of the cases where the delays were excessive and compensation
was not payable.
Article 6
73. In several provisions of the Bill criminal
offences are created. Wherever this occurs there is the potential
for Article 6 to be engaged. These provisions are compatible
with the Convention because any arrest in relation to such an
offence or any custodial sentence arising from it would only be
possible in accordance with the due process of law and the decision
of a competent court. As the trial forum would be a UK criminal
court, it would be directly subject to the HRA 1998. The enforcement
procedures relating to such offences and the proceedings of the
courts required to adjudicate in relation to such enforcement
would be fully compatible with Article 6.
CONSIDERATION OF ISSUES ARISING FROM SPECIFIC CLAUSES
PART 1
74. Clause 1 imposes a duty on certain
specified public authorities to consider how they may reduce relevant
inequalities of outcome when they are making strategic decisions
about how to exercise their functions. It is considered highly
unlikely that a public body subject to this duty enjoys Convention
rights. Therefore no Convention rights are engaged.
PART 2 AND
SCHEDULE 1
75. Clauses 4-12 provide definitions
of protected characteristics and do not engage Convention rights
except with regard to the definition of disability.
Definition of disability
76. Schedule 1 together with clause
6 defines "disability". The definition, which re-enacts
the existing definition in the Disability Discrimination Act 1995 ("the
DDA 1995"), does not in itself raise any issues of incompatibility
with the Convention.
77. However, as a more general matter, the
restricted definition of "disability" in the Bill could
lead a person with a physical or mental impairment, the adverse
effects of which are not sufficient to cause him to be classified
as having a "disability" within the meaning of the Bill
but which is sufficient to cause some detriment, to complain of
discrimination as regards the protection of his rights. It is
thought likely that the European Court of Human Rights would recognise
that it was legitimate for a State to set a threshold level at
which protection of disabled people from discrimination should
commence and would recognise a margin of appreciation for the
State to determine where the threshold should be set.
Direct discrimination
78. Clause 13 defines direct discrimination.
Direct discrimination occurs where, because of a protected characteristic,
one person (A) treats another (B) less favourably than A treats
or would treat other persons in comparable circumstances. This
definition is broadly similar to the definitions of direct discrimination
in the Race, Framework, Equal Treatment Amendment and Gender Directives,[30]
which existing provisions of anti-discrimination legislation have
implemented. The protection afforded by subsection (1) is wider
than that afforded by Article 14 of the Convention, which
is not a freestanding prohibition of discrimination as it only
applies to discrimination "in the enjoyment of Convention
rights". This protection is also wider because direct discrimination
cannot, in most cases, be justified—it is only in relation
to age that a justification defence is permitted. The protection
from direct discrimination which the Bill provides will frequently
provide a means of protecting a person's rights to respect for
his or her private life and to free expression.
79. Subsection (5) deems racial segregation
to be automatically discriminatory, which is compatible with Article
3's prohibition on degrading treatment. Other forms of segregation,
by contrast, are not necessarily discriminatory (hence, for example,
single-sex, special needs and faith schools are permitted).
80. We have considered how the prohibition
of direct discrimination could engage Convention rights. An example
of a situation with such potential would be if the prohibition
required the same treatment of the sexes, then there could be
an interference with an individual's Article 8 or Article
10 rights. Constraints imposed on a person's choice of dress
or appearance constitute an interference with that person's right
to respect for his or her private life, or to freedom of expression.
81. However, there is settled case law that
restrictions on choice of dress or appearance which are imposed
to an equal degree on men and women are not directly discriminatory,
even where those restrictions are not identical for both sexes.
So long as they apply a common standard of what is conventional
or smart, it has been held that one sex is not treated less favourably
than the other. In Kara v UK,[31]
the European Commission of Human Rights ruled that a dress code
requiring that employees dress "appropriately" to their
gender was in accordance with the law (in that it was based on
a lawful internal policy) and justified in terms of Article 8(2)
of the Convention.
Discrimination arising from disability
Clause 14 defines the concept of "discrimination
arising from a disability". This type of discrimination arises
if someone treats a disabled person in a way which amounts to
a detriment because of the disabled person's disability and the
act cannot be justified as a proportionate means of achieving
a legitimate aim. The provision makes it clear that a person cannot
be liable if that person did not know and could not reasonably
have been expected to know that the disabled person had a disability.
The prohibition on certain treatment of disabled people might
engage certain Convention rights such as Article 1 of Protocol
1, which is about the peaceful enjoyment of one's possessions.
This could be argued on the basis of, for example, a business
not being free to choose who uses its facilities or services.
However, these rights are limited and the State is able to control
the use of property in "accordance with the general interest".
We are confident that the reason for limiting freedom of action
in this case would be in accordance with the general interest
and that the safeguards in this provision ensure that the rights
of the disabled person and the property owner are properly balanced.
The right to justify behaviour by showing that it was a proportionate
means of achieving a legitimate aim ensures that these rights
are properly taken into account in determining whether discrimination
has occurred.
Gender reassignment discrimination: cases of absence
from work
82. Clause 15 provides that it is discrimination
against transsexual people to treat them less favourably for being
absent from work because they propose to undergo, are undergoing
or have undergone gender reassignment, than they would be treated
if they were absent because they were ill or injured. Transsexual
people are also discriminated against in relation to absences
relating to their gender reassignment if it would be unreasonable
to treat them less favourably than if they were absent for reasons
other than sickness or injury. This provision replaces part of
section 2A of the SDA 1975, which was inserted into the Act following
the decision of the ECJ in P v S and Cornwall County Council.[32]
We consider that this clause is compatible with and supportive
of the Article 8 rights of transsexual people and that it
would not infringe the Convention rights of their employers.
Pregnancy and maternity discrimination
83. Clause 16 protects a woman from
less favourable treatment for reasons of pregnancy and maternity,
including breastfeeding, outside work; and clause 17 provides
that less favourable treatment of a woman related to pregnancy
or statutory maternity leave as regards work constitutes discrimination.
These two provisions, which do not require any comparison of the
woman's case with that of another person, are derived from EC
law and replace parts of section 3B(1) and section 3A of the SDA
1975, respectively. We consider that they are compatible with
and indeed supportive of Article 8 of the Convention so far
as relating to family life. The provisions do not protect a female-to-male
transsexual person with a gender recognition certificate but we
do not consider that this contravenes Article 6 because he
is protected from direct discrimination on grounds of gender reassignment.
Indirect discrimination
84. Clause 18 defines indirect discrimination
in accordance with the Directives that the Bill is implementing.
Although earlier European Court of Human Rights case law on Article
14 did not recognise indirect discrimination as giving rise
to a breach of the Convention, the position has developed so that
now the European Court of Human Rights will consider whether a
measure that is neutral as to discrimination on its face, in fact
has a disproportionate affect on individuals belonging to an identifiable
group or having an identifiable status (eg McShane -v- United
Kingdom[33]).
This means that this provision is aligned with the case law on
Article 14 and supports this Convention right.
Duty to make reasonable adjustments
85. Clauses 19 to 21 make provision
about the various duties in the Bill to make reasonable adjustments.
These apply to employers, providers of employment services, trade
organisations, qualifications bodies, higher and further education
institutions firms or proposed firms, existing or proposed limited
liability partnerships, barristers and their clerks, advocates,
people making or recommending appointments to public or personal
office, local authorities in relation to their members , occupational
pension schemes, providers of goods, facilities and services,
public authorities, private clubs and actual or prospective landlords.
86. This duty could engage Article 1 of
Protocol 1 of the Convention (right to peaceful enjoyment
of possessions) as it requires people to take steps to make adjustments
to their premises or to change the way they undertake their business.
However, a balance is struck between the rights of the property
owner and the rights of the disabled person to fully participate
in society. An adjustment only has to be made if it is reasonable
and this maintains the correct balance.
87. In addition, where the property is occupied
under a lease, a person would not have to make adjustments where
they are not entitled to do so without the written consent of
the lessor (Schedule 21, paragraph 3). However, the lessor must
not unreasonably withhold that consent. This ensures that the
person who owns but does not occupy the property is informed about
alteration of his premises and can object if he has reasonable
grounds for doing so. Also, the occupier is protected from claims
where he is unable to make the adjustment without the lessor's
consent (and can join the lessor in as a party if a claim is commenced
against him (Schedule 21, paragraph 5)).
88. Also, the responsible person will not
be required to undertake any works for which third party consent
other than under a lease is necessary unless he receives that
consent (Schedule 21, paragraph 2(2) and (3)).
89. In these ways, the extent to which the
right to peaceful enjoyment of one's property is affected are
minimised by the protections given and achieve a balance between
those rights and the rights of disabled people and therefore the
reasonable adjustment provisions are compatible with the Convention.
Definition of harassment
90. Clause 24 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.
91. 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 applying the broader domestic
definition of harassment to these characteristics could infringe
Article 9 and Article 10 Convention rights. The Directives
define harassment as unwanted conduct related to the protected
characteristic which has the purpose or effect of violating a
person's dignity AND of creating an intimidating, hostile, degrading,
humiliating or offensive environment.[34]
The definition in clause 24 adopts the disjunctive approach
used in current domestic discrimination law but also adopts the
Directives' "related to" formulation. This means that
the definition in the Bill is somewhat broader than that in the
Directives because a case may be brought if either a person's
dignity is violated or an intimidating etc environment has been
created. There is currently harassment protection in all areas
of domestic discrimination law except for harassment on grounds
of religion or belief, sexual orientation, age and disability
outside the work place. 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.
92. 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).
This decision is not to ensure compatibility with the Convention—we
consider that such protection would be compatible with Convention
rights on the basis that Article 10 and Article 9(2) rights
are qualified rights which may be restricted to protect the rights
of others. However in these areas the Bill will not pre-empt any
extension of EC law on harassment in relation to these protected
characteristics into non-work areas. The Government has decided
to extend harassment protection outside the workplace to cover
age and disability. We would argue that any interference with
Article 10 and Article 9(2) rights is justified because of
the need to protect the rights of others eg the Article 8 and
14 rights of disabled customers.
93. Although the definition in clause 24 is
broader than the Directives' definition as a result of following
a disjunctive approach, as the Government has stated on previous
occasions, it is difficult to see how the two concepts differ
in practice: conduct which violates a person's dignity almost
invariably also creates an offensive etc environment for that
person and vice versa. Some may claim that as clause 24 refers
to "related to", rather than "on grounds of",
this further extends the definition of harassment and thus the
interference with these rights. However, irrespective of this
change, the Court of Appeal has already established that "on
grounds of" has a broad definition for the purposes of harassment
(English -v- Thomas Sanderson Ltd[35]).
The Government would argue, as it has done previously, that these
are qualified Convention rights and may be restricted to protect
others who also have Convention rights, notably Article 8 and
Article 14 rights. Further, the definition of harassment
is subject to an objective analysis in the case of unintentional
conduct (albeit one which must take account of the perception
of the victim), which would ensure that frivolous and vexatious
claims would not be entertained by the courts.
Victimisation
94. Clause 25 defines the prohibited
act of victimisation. It provides further protection of individuals'
Convention right not to be discriminated against but does not
otherwise engage the Convention.
PART 3 AND
SCHEDULES 2, 3, 23 AND
24
95. Clauses 26 to 30 and Schedules
2, 3 and 23 address discrimination, victimisation and
harassment in the field of goods, facilities and services (collectively
referred to as "services") and in the field of non-service
public functions in relation to all the protected characteristics
except age, in respect of under 18s, and marriage and civil partnership.[36]
These provisions re-enact the substance of the existing provisions
in the SDA 1975, the RRA 1976, the DDA 1995, the Equality Act
2006 and the Equality Act (Sexual Orientation) Regulations
2007. The provisions in Part 2 of the Equality Act 2006 concerning
discrimination in the provision of services and the exercise of
public functions on grounds of religion or belief post-date the
commencement of the HRA 1998 and consideration was given
at that time to their compliance with the Convention. There is
no reason why the considerations given to the religion or belief
provisions are not equally applicable to the other protected characteristics.
96. Clause 27 prohibits discrimination,
harassment (though not in relation to religion or belief or sexual
orientation) and victimisation on protected grounds in respect
of the provision of services to the public or a section of the
public ("the services provisions") and in the exercise
of non-service public functions ("the public functions provisions").
Clause 28 provides for the application of the services provisions
to the provision of ships or hovercraft or services on such vessels
to be prescribed by secondary legislation. This will enable the
detail of when the services provisions apply to British registered
vessels outside of territorial waters and to non-British registered
vessels within territorial waters to be set out in secondary legislation.
The intention is that such secondary legislation will be commenced
at the same time as the provisions of Part 3. Clause 29 ensures
that a group of employees is to be treated as a section of the
public for certain purposes. This will ensure that the services
provisions apply to the provision of a service by a third party
to an employer's work force where there might otherwise be doubt
as to whether such a group constitutes a section of the public.
Clause 30 is an interpretive provision.
97. The prohibition in clause 27 is
subject to the exceptions set out in Schedule 3 (specific
to Part 3) and also in Schedule 23 (applicable to several
Parts). It is also subject to Schedule 2 which sets out the
duty of reasonable adjustments for service providers. The principle
exceptions in Schedule 3 concern certain constitutional and
public policy exceptions in respect of the prohibitions in the
exercise of non-service public functions (paragraphs 1-5) , education-related
exceptions (paragraphs 6-12), health and social care exceptions
(paragraphs 13-15), immigration exceptions (paragraphs 16-19),
insurance exceptions (paragraphs 20-22), separate and single service
exceptions (paragraphs 23-27) and certain transport services for
the disability strand (paragraphs 28-30). Of these exceptions,
the constitutional and public policy, education-related, care
in the family and immigration exceptions (insofar as they relate
to the protected characteristic of religion or belief) have previously
been subject to scrutiny regarding their compliance with the HRA
1988 when enacted in Part 4 of the Equality Act 2006.
Potential engagement with the Convention
98. In terms of Convention engagement, the
above clauses and Schedule 3 could potentially engage Article
8, Article 9, Article 11 and Article 1 of Protocol 1.
Potential engagement of the Convention is considered below in
relation to the service provider, those seeking to access a service
and those seeking access to a non-service public function respectively.
99. In respect of the service provider,
an area of potential engagement with the Convention is Article
1 of Protocol 1 and the service provider's right to
peaceful enjoyment of his or her property, including disposal
of such property. It is conceivable that the restriction on who
a person can sell his or her goods to constitutes an interference
with his or her right to peaceful enjoyment of such property.
This is not established but if this were the case, we would contend
that the general restriction on who one can provide one's goods
to constitutes a necessary control on the use of property in accordance
with the wider public interest in ensuring non-discrimination
on prohibited grounds and, as such, is justified under the second
limb of Article 1 of Protocol 1. Given the fundamental importance
of the right to non-discrimination in democratic societies, we
are confident that, in the language of the European Court of Human
Rights, the restriction imposed by clause 27 strikes "a
fair balance … between the demands of the general
interest of the community and the requirements of the protection
of the individual's fundamental rights" (Sporrong
and Lonnroth v Sweden[37]).
100. Another area where clause 27 could
arguably infringe the Convention rights of the service provider
arises where the service is being provided within the context
of the family and the restriction on discrimination could thereby
constitute an interference with the service provider's own right
to respect for family life (Article 8). This might arise, for
example, where a person acts as a foster parent and, for their
own reasons, only wishes to foster children of a particular sex,
race, religion etc. Any requirement whereby the foster parent
was obliged to foster children irrespective of their particular
sex, race or religion would in all likelihood be held to amount
to an interference with the foster parent's right to respect for
family life. The question would then be whether it was justified
in accordance with Article 8(2). However, the exception from clause
27 at paragraph 15 of Schedule 3 for care within
the family (whether provided for reward or not) means that a foster
parent who did in fact stipulate that they would only take male
children into their home would not in fact be in breach of clause
27. Accordingly, no interference with the right to respect for
family life of the service provider in fact arises under the legislation.
101. A further area where clause 27 could
potentially infringe the Convention rights of the service provider
is in respect of Article 9 and the freedom to manifest one's
religion. Further consideration is given to this matter in considering
the religious organisation exception in Schedule 23 at paragraphs
131-133.
102. Finally, clause 27 could potentially
infringe the Article 11 rights of service providers who wished
to restrict participation in the activities of their organisations
to those of a particular shared characteristic. In most situations
we consider that any interference presented by clause 27 is
justified under the second limb of Article 11 as being prescribed
by law and as proportionate to the legitimate aim of protecting
the rights of others not to be discriminated against (itself a
fundamental principle of a democratic society). This is primarily
because clause 27 is specifically concerned with services
which are provided to the public or a section of the public, eg
the facilities of a cinema, hotel, pub, local bingo hall, travel
agency or local grocery store. That being the case, in general
we see no reason why a body providing such services to the public
should be able to restrict such provision to those who are of,
for example, of a particular sexual orientation, race or gender.
(Nevertheless, we recognise that there are particular situations
where such restriction may be justified, for example, the provision
of separate services for women to avoid embarrassment. Such restriction
would be permitted by the gender-specific services exceptions
which are considered in more detail at paragraphs 136-137).
103. The one area where we consider that
it may be legitimate for certain organisations to be able to limit
participation in activities and provision of services, on a more
general basis, to those sharing a particular protected characteristic
is in respect of religious organisations limiting provision and
participation to those of a particular religion or belief. This
is due in large part to the need to uphold the Article 9 and
11 rights of both the organisation and those receiving the
service or participating in the activities. The religious organisation
exception in Schedule 23 is examined in more detail at paragraphs
131-133 below.
104. With respect to the person receiving
the service, there is no general right under the Convention to
be able to access certain goods or to receive a particular service.
Thus, for example, in Botta v Italy,[38]
a physically disabled applicant contended that the state was under
a positive obligation under Article 8 to ensure that private
beaches complied with local laws which required facilities to
be installed to enable disabled people to access beaches. The
European Court of Human Rights, while recognising the breadth
of Article 8 and that it was "primarily intended
to ensure the development, without outside interference, of the
personality of each individual in his [or her] relations with
other human beings", considered that the right asserted
by the applicant, namely to gain access to the beach and sea,
"concerns interpersonal relations of such broad and indeterminate
scope that there can be no conceivable direct link between the
measures the State was urged to take in order to make good the
omissions of the bathing establishments and the applicant's private
life". It cannot therefore be contended that Article
8 and the right to respect for private life protects some
form of general right to access goods and services in order
to ensure the development of an individual's physical and psychological
integrity. Instead, whether the ability or inability to access
a particular service constitutes an interference with an individual's
Article 8 rights will depend on the particular circumstances
of the case and the nature of the service in question. If anything,
the prohibition on discrimination in the provision of services,
ensures that individuals' rights under Article 8 (alone and
in conjunction with Article 14) are upheld by ensuring that individuals
have access to services which impact upon the development of their
physical and psychological integrity without discrimination.
105. It is also conceivable that clause
27 could engage an individual's freedom of association (Article
11). For example, an individual might wish to attend a night club
where there were no homosexuals. However, under clause 27 it
would be unlawful for the owner of the night club which was open
to members of the public to prohibit homosexuals from entering.
If the individual were to claim a breach of their Article 11 rights,
then, to the extent that there was considered to be an interference
with these rights, we are confident that any such interference
could be justified as being prescribed by law and as being necessary
for the protection of the rights of others not to be discriminated
against in exercising their own Article 8 or 11 rights
as the case may be. Furthermore, if an individual is adamant that
they want a venue where they can essentially associate with their
own kind, be it male, female, homosexual, transsexual, of a particular
disability etc., then it is always open to them to join a private
members' club whose membership is limited to those of a given
characteristic as allowed for under Schedule 16 (exceptions
for associations). (On private members clubs more generally, see
below at paragraphs 229-236.) We consider that the availability
of alternative venues further supports the case that the restriction
on Article 11 rights presented by clause 27 is proportionate
to the legitimate aim of protecting the rights of others.
106. There is one area, however, where we
consider that the balance between competing rights does warrant
being drawn at a different point and this is in relation to individuals
of a particular religion or belief participating in activities
of religious/belief organisations. The religious organisation
exception in Schedule 23 effectively allows individuals to
participate in activities arranged by a religious organisation
which are limited to those sharing the same religion or belief
in order to protect the Article 9 and 11 rights of both
the organisation and the individuals. (This exception is explored
in more detail at paragraph 134 below.)
107. We consider it unlikely that the prohibition
on discrimination in the exercise of non-service public functions
will give rise to any interference with Convention rights. Examples
of relevant public functions would be raising of revenue (potentially
engaging Article 1 of Protocol 1), police investigations
(potentially engaging Articles 5 and 8), prison-related functions
(again, potentially engaging Article 5), regulatory and law enforcement
functions of bodies such as HM Revenue and Customs and the Health
and Safety Executive (potentially engaging Articles 5 and
8 and Article 1 of Protocol 1). However, public authorities
are under a duty to secure the rights under the Convention without
discrimination. For example, a person should not be detained by
police simply because he is black or be subject to higher taxation
because she is lesbian. By prohibiting such discrimination, the
Bill seeks to ensure the UK's compliance with its obligations
under the Convention.
Exceptions from Part 3
The exceptions in Schedule 3
108. The constitutional and public policy
exceptions to the prohibition on discrimination in the exercise
of public functions, contained in paragraphs 1 to 5 of
Schedule 3 are designed to provide a balance between the
rights of individuals not to be discriminated against in the exercise
of public functions and the need for certain public authorities
to be able to act in ways which might interfere with these rights
in order to protect the wider interests of the community. For
example, the exemptions for the Security Service and the Secret
Intelligence Service enable these bodies to continue the important
work of safeguarding national security (paragraph 5). The exemption
for judicial functions is not because it is considered that judges
should be above the law but rather that any challenge to their
decision on the basis of bias or discrimination should be brought
by way of appeal rather than through satellite proceedings under
the equality legislation (paragraph 3). Finally, the exemption
for legislative functions serves to enable legislation to be made
which is in fact discriminatory for justified reasons eg health
and safety legislation which potentially discriminates against
disabled people (paragraph 2).
109. The education exceptions in paragraphs
6 to 12 are a necessary corollary to the disapplication
of or exceptions to Part 6 (education) for the protected
characteristics of age, sex and religion or belief. (On the compliance
of those exceptions with the Convention, see paragraphs 225 and
following below.) Thus, for example, a local authority will not
be in breach of clause 27 in setting up a single-sex school
or in providing more secondary schools in its area than primary
schools.
110. Paragraph 13 of Schedule 3 contains
an exception for blood service operators which would enable them
to refuse to accept blood from a person on public health grounds.
This exception potentially engages Article 8 in that the
blood service provider will presumably have to ask questions about
a person's private life to ascertain whether they represent a
potentially at risk category of blood donor. However, we consider
that any such interference is justified under Article 8(2) in
terms of being in accordance with the law and necessary for public
safety and for the protection of health. The requirement that
the refusal is reasonable and based on data from a reliable source
seeks to ensure that any interference is proportionate and no
more than is necessary to achieve the legitimate aim in question.
111. Paragraph 14 contains an exception
regarding pregnant women and the risk to health and safety. This
exception potentially interferes with a pregnant woman's right
to respect for private and family life in that she could be said
to be being penalised because she has chosen to become pregnant.
However, we consider that any possible interference with a woman's
Article 8 rights is justified as being in accordance with
the law and as necessary for the protection of health (as per
Article 8(2)). In particular, any refusal to provide a pregnant
woman with the service or only to do so with conditions attached
must be based on a reasonable belief that to do otherwise
would create a risk to her health and safety. In other words,
the restriction is subject to an objective test rather than the
subjective views of the service provider as to what is or is not
harmful to a pregnant woman's health. Furthermore, there is a
requirement that the service provider would place a similar restriction
on somebody who presented themselves with other physical conditions.
We consider that the criteria that must be met for the exception
to apply ensures that it is proportionate to the legitimate aim
of protecting the woman's health.
112. Paragraph 15 provides an exception
in respect of care within the family which has already been considered
above.
113. The immigration exceptions at paragraphs
16 to 19 are considered necessary to ensure that the
prohibition in clause 27 does not prevent the effective exercise
of immigration functions which, in some circumstances, are necessarily
based, directly or indirectly, on matters of nationality or ethnicity,
religion or belief or health (and therefore potentially disability,
depending on whether the effect of the disease on the individual
is such as to come within the definition of disability for the
purposes of the Bill). Examples of areas where there is differential
treatment based on nationality or ethnicity include intelligence-led
immigration control; policy (eg allowing Kosovan Albanians exceptional
leave to remain in the wake of the 1999 conflict); granting
of visas; casework management (eg priorities for determining claims
by reference to the nationality or ethnic group of the claimant
when it is known that the claims of a certain group are relatively
straightforward or have an exceptionally low acceptance rate).
114. In relation to religion or belief,
it may be necessary to exclude from the UK a person who holds
extreme religious views. Also, ministers of religion, missionaries
and members of religious orders are treated as a distinct category
under the Immigration Rules subject to their own requirements
as to leave to enter, leave to remain and indefinite leave to
remain.
115. In respect of disability, there may
be situations where a person may need to be refused entry into
the UK because they present a risk to public health (eg those
with particular strains of TB or carriers of the human strain
of avian bird flu). There is no general right under the Convention
to be able to move freely in or out of a country or to reside
in a particular country. Nevertheless, it is recognised that in
some circumstances the differential treatment permitted by the
immigration exceptions may involve an interference with a person's
Article 8 rights concerning the right to family life. However,
any such interference that there might be is considered to be
fully justified under the second limb of Article 8 in order
to protect the national security, public safety, the protection
of public health and the protection of the rights of others.
116. Paragraphs 20 to 22 provide
exceptions from the prohibition in clause 27 in relation
to insurance. They permit a provider of insurance to act in a
way that is based on sex, disability or pregnancy in certain circumstances.
The exceptions are drafted restrictively so that, to come within
the exception, an insurer needs to show that they have acted reasonably
and based on information from a source on which it is reasonable
to rely (and in the case of sex or pregnancy the information relied
on must be actuarial or statistical). Although the exceptions
engage the Article 8 (read with Article 14) rights of an
affected individual who is purchasing insurance, we are satisfied
that they do not breach those rights because they are pursuing
the legitimate aim of protecting the rights of the insurer (as
permitted by Article 8(2)) and they are a proportionate means
of achieving that aim.
117. Paragraph 23 sets out where different
treatment is permissible in the provision of separate services
for each sex; paragraph 24 sets out where different treatment
is permissible in the provision of services for only one sex.
The exercise of public functions in relation to the provision
of such services is also permitted. We have considered whether
these exceptions potentially engage the Article 8 (read together
with Article 14) rights of individuals.
118. Paragraphs 23 and 24 support
people's Article 8 rights by providing privacy where otherwise
the provision of services to both sexes jointly might engage those
rights. These provisions permit discrimination on grounds of sex
in limited and clearly defined circumstances and so Article 14 (read
with Article 8) is engaged. Examples of the services which could
be provided under this exception are refuges for victims of domestic
violence, referral centres for victims of sexual assault, healthcare
treatment of conditions which affect only, or primarily, one sex
(such as ovarian or prostate cancer), projects which provide support
for fathers and changing rooms/toilet facilities. As these examples
show, these provisions of the Bill enable the provision of separate
or different services to people of a particular sex in a way that
is appropriate and compatible with Convention rights. In relation
to the actual provision of such services, the Bill specifically
requires that such treatment must be a proportionate means of
achieving a legitimate aim. The legitimate aims they pursue eg
protecting the privacy of people of both sexes in hospital 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 in accordance with
the test laid down by the Court in the Belgian Linguistics
case.[39]
119. Paragraph 25 sets out that the
treatment of transsexual people in relation to the provision of
separate and single-sex services must be a proportionate means
of achieving a legitimate aim. In most cases a trans female will
wish to be treated in her acquired gender. This will be the case,
for example, in the use of female toilets. However, in the case
for instance of screening for prostate cancer, a trans female
might wish to be treated in her birth gender. In both these examples,
there are likely to be issues of privacy for the transsexual person,
as well as potentially the privacy of other users of those services.
120. We have considered whether the Article
8 right to respect for private and family life may be engaged
regarding the treatment of transsexual people in the provision
of separate or single-sex services. Article 8(2) provides in particular
that there shall be no interference by a public authority with
the exercise of this right except as is necessary for the protection
of the rights and freedoms of others. Paragraph 25 is likely
to satisfy Article 8(2) as it is justified by the need to protect
the rights and freedoms of others.
121. These provisions permit discrimination
on grounds of gender reassignment in limited and clearly defined
circumstances and so Article 14 (read with Article 8) is
engaged. These provisions of the Bill enable providers of separate
or different services to people of a particular sex to treat transsexual
people in a way that is appropriate and compatible with Convention
rights. This is because they pursue legitimate aims eg protecting
the privacy of people of either sex in hospital where a transsexual
person is admitted and it is not considered appropriate for that
person to be on a ward limited to a particular sex, 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.
122. There is a wide margin of appreciation
that is usually given in the treatment of sensitive issues in
relation to transsexual people. In R and F -v- UK,[40]
the court held that it was well within the margin of appreciation
for the UK to require married transsexual people to divorce before
they could be recognised in their new gender.
123. Paragraph 26 provides that, where
a service is provided for religious purposes at a place occupied
or used for those purposes, there may be circumstances where different
treatment of each sex is permissible. This would be where the
provision is necessary in order to comply with the doctrines of
the religion or is for the purpose of avoiding conflict with the
strongly held religious convictions of a significant number of
the religion's followers. Examples would be where particular services
are held for members of one sex only or perhaps separate seating
arrangements for people of each sex are considered necessary.
124. These provisions permit discrimination
on grounds of sex in limited and clearly defined circumstances
and so Article 14 (read with Article 9) is engaged. These
provisions of the Bill enable different treatment of each sex
in the context of services that are provided for religious purposes
in certain circumstances in a way that is appropriate and compatible
with Convention rights. This is because they pursue legitimate
aims, allowing for the doctrines of the religion or the avoidance
of conflict with the strongly held religious convictions of a
significant number of the religion's followers, 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.
125. Paragraph 27 of Schedule 3 contains
an exception which permits a service provider, who generally provides
a service only for people who share a particular protected characteristic,
to refuse to provide that service to people who do not share that
characteristic where it would be impracticable to do so. The exception
is limited by the requirement that A's belief that it is impracticable
to provide the service must be reasonable. We are satisfied that
this limitation means that even if Article 8 were engaged
by this provision, it would not constitute a breach because it
only permits discrimination where there is a legitimate aim and
the means of achieving that aim is proportionate.
126. Part 7 of Schedule 3 (paragraphs
28-30) provides an exception to the prohibition on disability
discrimination for air and water transport services. Such services
are already subject to various international agreements (eg Regulation
(EC) no. 1107/2006 of the European Parliament and of the
Council of 5 July 2006 concerning the rights of disabled
persons and persons with reduced mobility when travelling by air).
The predominantly international nature of air and water travel
has resulted in the view that it is best for any duties in this
area to be as provided for under those agreements rather than
by imposing separate, and possibly different, domestic duties.
It is therefore not a question of, for example, an air carrier
being under no obligations in relation to disabled passengers
but rather that the obligations are those agreed between countries
at an international level rather than those imposed domestically
which could result in an air carrier being subject to different
obligations for each jurisdiction that it flies through. Certain
land vehicles which are not listed in paragraph 30 are also
exempted from the services provisions.
127. Part 8 of Schedule 3 (paragraph
31) contains powers to amend the exceptions in Schedule 3 in
those areas where EC law does not currently apply. In particular,
there is an order-making power which would enable transport services
to be brought within the scope of clause 27. This will enable
that section to be applied in whole or in part to different transport
vehicles at different times. We consider that there could be an
interference with the rights of a provider of transport services
to enjoy his possessions under Article 1 of Protocol 1. In
due course, he may be required to make alterations to practices,
policies and procedures. However, such changes would only be required
where it was reasonable to do so. Furthermore, Article 1 of
Protocol 1 permits the State to make such laws as are deemed
necessary to control the use of property in the general public
interest. It is therefore considered that there is no contravention
of this Article. To the extent that it does involve any interference
with the rights of transport operators to peaceful enjoyment of
their possessions, such interference is considered justified by
the benefit to the public interest, and in particular the positive
improvement in the rights of disabled people, in the application
of existing anti-discriminatory principles to the providers of
transport services.
128. Accordingly, it is considered that
the order-making power contained in paragraph 31 can be exercised
in conformity with the Convention, and that the exception as a
whole raises no issues of incompatibility with the Convention.
The exceptions in Schedule 23
129. The exceptions in Schedule 23 are
mostly of relevance to Parts 3 (services and public functions),
4 (premises), 5 (work) and 7 (associations).
130. Paragraph 1 permits discrimination
where it is the result of acts authorised by the executive or
by statute. The provision itself cannot be usefully discussed
in terms of potential breaches of the Convention, as compliance
with the Convention will depend on the statutory instrument or
statute relied on to justify discrimination.
131. The exception from the prohibition
in clause 27 for religious organisations in paragraph 2 of
the Schedule was originally included in the Equality Act 2006 to
ensure primarily that the valuable work of various not-for-profit
religious bodies providing welfare services to their particular
community was not affected by the general prohibition on religious
discrimination in the provision of services, as well as allowing
for the continued lawfulness of groups that came 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).
132. 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. (To this extent, it has similarities
with the exception to the prohibition on discrimination by private
clubs in relation to members. The exception for single characteristic
clubs and the relevant jurisprudence on the application of the
Convention is considered further at paragraphs 233-235 below.)
Additionally, the exception, in enabling religious organisations
only to provide for their own members can, depending on the nature
of the religion in question, be viewed as upholding their Article
9 rights regarding freedom to manifest one's religion. 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 would be unlikely to be considered 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.
133. 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
it 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.
134. 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 of 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.
135. 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.[41]
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.
136. Paragraph 3 sets out where different
treatment of people of each sex is 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. We have considered whether
these provisions potentially engage the Article 8 right to
respect for private and family life read together with Article
14, the right to enjoy Convention rights without discrimination.
Paragraph 3 supports people's Article 8 rights by providing
privacy where otherwise the provision of communal accommodation
to both sexes jointly might engage those rights. The purpose of
this exception is to provide for people's privacy when sharing
communal accommodation.
137. These provisions permit discrimination
on grounds of sex in limited and clearly defined circumstances
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. This is because they pursue
the legitimate aim of protecting the people'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.
138. Sub-paragraph (4) provides that the
treatment of transsexual people in relation to the provision of
communal accommodation or benefits linked to that accommodation
must be a proportionate means of achieving a legitimate aim. There
may be issues of privacy for the transsexual person, as well as
the privacy of other users of the accommodation.
139. We have considered whether the Article
8 right to respect for private and family life may be engaged
regarding the treatment of transsexual people in the provision
of communal accommodation. Article 8(2) provides in particular
that there shall be no interference by a public authority with
the exercise of this right except as is necessary for the protection
of the rights and freedoms of others. Sub-paragraph (4) is likely
to satisfy Article 8(2) as it is justified by the need to protect
the rights and freedoms of others. There is a wide margin of appreciation
that is usually given in the treatment of sensitive issues in
relation to transsexual people.
Schedule 24
140. Finally, reference should also be made
to Schedule 24. This Schedule simply ensures that the provisions
of the Bill (in practice, predominantly the requirements of Part
3 concerning services) are compatible with the requirements
of the E-Commerce Directive[42]
concerning rules regarding country of origin and certain exceptions
for intermediary information service providers.
Part 4 and Schedules 4 and 5
141. Clauses 31 to 36 and Schedule
5 address discrimination and harassment in the field of premises
in relation to all protected characteristics except age and marriage
and civil partnership
142. Clause 32 prohibits discrimination,
harassment (although not in relation to religion or belief or
sexual orientation) and victimisation on protected grounds in
relation to the disposal or potential disposal of premises. Clause
33 similarly prohibits a person whose permission is required
for the disposal of premises from discriminating against or harassing
a person to whom a disposal or premises may be made. Clause 34 prohibits
discriminatory conduct by managers of premises in relation to
occupants of premises.
143. The prohibitions set out in the clauses
listed above are subject to exceptions set out in Schedule 5.
These include exceptions in relation to owner-occupied premises
and small premises.
144. The owner-occupier exception lifts
the prohibition on discrimination in relation to all strands (with
the exception of race discrimination) on a person who is disposing
of premises, and in relation to religion or belief and sexual
orientation in connection with the granting of permission for
a disposal, in the context of a private (ie non-advertised and
without the use of an estate agent) disposal of premises by an
owner-occupier.
145. The small premises exception exempts
disposers or managers of parts of premises from certain of the
prohibitions if that person (or a relative) resides (and intends
to continue to reside) elsewhere on the premises and the premises
include certain shared parts (eg a common kitchen or bathroom).
In these circumstances, the anti-discrimination provisions of
clauses 32(1) and 33(1) (in relation to disposals and consent
to disposals) will only apply in relation to the strand of race,
and the harassment provision of clause 33(2) (in relation to consent
to disposals) will only apply in relation to the protected characteristics
of race and/or sex.
146. We have considered which Convention
Articles might be engaged by the above clauses and Schedule 5 and
concluded that Article 8 and Article 1 of Protocol 1 are
the most likely ones.
147. In relation to Article 8, it is conceivable
that a claim could be brought on the basis that placing restrictions
on the manner in which premises may be disposed of or managed
may restrict the rights of disposers/managers to respect for their
private life or home.
148. While the European Court of Human Rights
has generally taken a broad view of what constitutes a home, there
have been relatively few standalone claims brought on this ground.
Moreover, the few cases which may be relevant (and the key cases
in relation to the right for respect for the home) generally relate
to circumstances in which a state body has interfered directly
with a person's home, and particularly with the physical security
of and/or belongings contained in a home.[43]
It therefore seems unlikely that a standalone claim could succeed
on this specific aspect of Article 8.
149. More likely, is that a claim may be
brought alleging an interference with the right to respect for
private and family life. In order for this to be the case, however,
such a claim would have to be brought in relation to a family
home or a person's own residence, in which case—for the
most part—the small premises exception (outlined above)
would very likely apply and the scope for challenges would diminish
accordingly.
150. As the small premises exception does
not apply in all circumstances in relation to sex and race discrimination,
there is still some potential for Article 8 to be engaged
in relation to this clause. However, a claim under Article 8 should
be readily defensible as the restrictions involved in relation
to small premises could reasonably be said to be: in accordance
with law, for legitimate purposes and necessary in a democratic
society to protect the rights and freedoms of others (per Article
8(2)).
151. The premises restrictions clearly are
for the protection of the rights and freedoms of others because
they are imposed in order to protect the rights of people not
to be discriminated against, harassed or victimised on the grounds
of sex and race.
152. In relation to the issue of whether
a restriction on the disposal/management of premises is likely
to be deemed necessary in a democratic society, the key issues
will be as to whether the restrictions placed can be said to be
"in response to a pressing social need, and… no greater
than is necessary to address that pressing social need".[44]
It seems extremely unlikely that the European Court of Human Rights
would find that preventing discrimination, harassment and victimisation
does not qualify as a pressing social need. Moreover, the careful
balance that has been struck throughout the premises provisions
between the rights of individuals and the needs of society (as
evidenced in the exceptions contained in Schedule 5) will support
a defence against any claim that the Government has acted disproportionately
in pursuing this need.
153. Also, in any event, the state has a
margin of appreciation in determining the demand for, and proportionality
of, any measure. Moreover, the courts can be said to regard (inter
alia) "the qualities of pluralism, tolerance, broadmindedness
(and) equality… as important ingredients of any democracy".[45]
As such, it seems extremely unlikely that the courts would decide
that measures to combat inequality and discrimination would be
deemed unnecessary in a democratic society, nor disproportionate
in that context (as long as the measures were legitimately directed
to that purpose).
154. The alternative possible claim under
the Convention in relation to these clauses would be for breach
of Article 1 of Protocol 1, which concerns the peaceful enjoyment
of possessions. Where legally owned, real property is a possession
within the meaning of Article 1 of Protocol 1. Moreover,
to the extent that a right to withhold consent to a disposal of
property is legally enforceable (under domestic law), such right
is also likely to constitute property under this Article.
155. The measures set out in these provisions
limit the ability of property owners to dispose of (or otherwise
control the use of) their property. While not explicitly set out
on its face, Article 1 of Protocol 1 of the Convention
has been held to include a right to dispose of property.[46]
156. That said, in the event that these
clauses are held to constitute interference with the right of
individuals or corporations to dispose of or control their property,
such interference would be likely to be deemed acceptable to the
extent that they are in accordance with domestic law and EC law,
are for a legitimate purpose and are not disproportionate. Given
the broader social purpose of anti-discrimination law, it seems
very unlikely that any challenge to the premises provisions of
the Bill could succeed.
157. It is possible that a claim could be
brought against the UK on the basis that the Government had acted
disproportionately in relation to controlling the use or disposal
of property. To succeed, it would be necessary to demonstrate
that the Government had placed an excessive and disproportionate
burden on individuals. Such a claim would be unlikely to succeed
because of the careful balance which has been struck between the
rights of individuals and the interests of society more broadly,
including through the use of the exceptions contained in Schedule
5.
158. Moreover, the European Court of Human
Rights has recognised that the "notion of 'public interest'
is necessarily extensive… (and that) the margin of appreciation
available to the legislature in implementing social and economic
policies should be a wide one… (In consequence, the European
Court of Human Rights) will respect the legislature's judgments
as to what is 'in the public interest' unless that judgment is
manifestly without reasonable foundation".[47]
159. Clause 35 together with Schedule
4 impose duties to make reasonable adjustments. These apply
in relation to let premises, premises to let, commonhold premises
and, in certain cases, to the common parts of certain residential
property.
160. In the case of let premises and commonhold
land, there is a duty to make reasonable adjustments to a provision,
criterion or practice or a term of the tenancy or, in the case
of commonhold land, the commonhold community statement or to provide
an auxiliary aid if a disabled person is put at a substantial
disadvantage compared to a non-disabled person in relation to
enjoying the premises or making use of benefits or facilities.
In the case of premises to let similar duties apply in relation
to someone wanting to rent the property. There is no duty to make
physical alterations. The duty only applies if a request is made
by the disabled person or someone on his or her behalf.
161. The also duty requires, in the case
of commonhold property, the commonhold association and in the
case of leasehold property, the owner or manager of the property
(referred to in the Bill and here as the "responsible person"),
to make reasonable adjustments to the physical structure of the
common parts of the property in certain circumstances.
162. The duty applies only if the adjustment
is requested by a disabled person who lawfully occupies the premises
as his or her only or main residence or by someone on his or her
behalf. The duty arises if the disabled person is at a substantial
disadvantage compared to a person without the same disability
when using the common parts and the adjustment is likely to reduce
or remove that disadvantage. There is also a prohibition on victimising
the disabled person, a person who makes the request on behalf
of the disabled person and on members of the disabled person's
household.
163. As with reasonable adjustments generally,
these duties could engage Article 1 of Protocol 1 (right
to peaceful enjoyment of possessions). In this context, it has
the potential to force alterations to property which the responsible
person might not wish to make and which other occupiers of the
premises might not wish to be made (however, as mentioned above,
the non-common parts duty does not extend to the physical structure
of the property but there may still be an issue in relation to
the use of the property).
164. However, we consider that this provision
is compatible with the Convention. It is clear from the Convention
that Article 1 of Protocol 1 does not provide an absolute
right and that there will be circumstances in which the right
can be limited. In the present case, the rights are being limited
in the interests of enabling disabled people to make use of the
premises in which they live and are limited only as far as necessary
to achieve that aim as evidenced by the following points:
165. The adjustment only has to be made
if it is reasonable and therefore, if there is a good reason
why the adjustment should not be made, there is no obligation
to do so.
166. Under paragraph 6 of Schedule
4, all persons who the responsible person thinks would be affected
by the adjustment must be consulted and any views expressed have
to be taken into account when determining whether the adjustment
is reasonable or not (unless the responsible person believes a
negative view is based on the disabled person's disability).
167. If the adjustment is reasonable, a
written agreement has to be made setting out the rights and responsibilities
of the parties. The landlord or the commonhold association may
insist that the disabled person pays for the costs of the work,
including maintenance costs and the cost of restoring the property
to its original condition when the adjustment is no longer needed.
This helps to protect the property rights of other people affected
by any adjustment made.
168. As set out above in paragraphs 85-89 in
the context of reasonable adjustments generally, the responsible
person is protected in relation to works for which third party
consent is required or where he is a lessee himself.
PART 5 AND
SCHEDULES 6-9
169. Clauses 37, 38, 39 and 40 prohibit
discrimination against and victimisation and harassment of employees
(including police officers and cadets), applicants for employment
and contract workers. Clause 41 is supplementary and raises
no human rights issues. These provisions re-enact similar sections
in existing primary legislation (the SDA 1975, RRA 1976 and
the DDA 1995) which implemented Directive 2006/54/EC, Directive
2000/43/EC and Directive 2000/78/EC respectively.
170. We have considered which articles of
the Convention could be engaged by these clauses and concluded
that Articles 8 and 9 are most likely to be engaged.
Article 8 rights may be engaged to the extent the prohibition
restricts an individual's freedom in the selection of domestic
workers (eg, a personal assistant, carer or domestic cleaner).
Article 9 rights may be engaged to the extent the prohibition
restricts the ability of religions or religious organisations
to comply with the tenets of their religion.
171. However, a claim under Article 8 or
9 should be readily defensible as the restrictions imposed
are in accordance with law, for legitimate purposes and necessary
in a democratic society to protect the rights and freedoms of
others. By making it unlawful to discriminate in the workplace
on the protected grounds or to carry out other acts such as victimisation,
these provisions are protecting the rights of people not to be
discriminated against in the workplace. Further the Bill provides
carefully limited exceptions in Schedule 9 (eg for occupational
requirements, paragraph 1) which are considered to strike the
balance between the rights of individuals and the needs of society
correctly so that any potential infringement of the Convention
rights is unlikely.
172. Clause 53 makes it unlawful to
discriminate against, harass or victimise a person in connection
with the provision of an employment service, which includes the
provision of vocational training or vocational guidance. In our
view, this prohibition does not engage any Convention rights.
The right to education set out in Article 2 of Protocol 1 does
not include the right to vocational training.
173. Clause 38 imposes liability on
an employer for failing to protect an employee from persistent
harassment by a third party, such as a customer. Under this provision,
an employer is treated as harassing an employee where a third
party harasses the employee in the course of employment and the
employer has failed to take reasonably practicable steps to prevent
such harassment. However, an employer will only be liable where
he has knowledge that his employee has been harassed on at least
two other occasions (ie there must be knowledge of persistent
harassment). We do not consider that this provision raises any
separate issues in respect of Convention rights to those already
raised in relation to harassment.
Organisations and Bodies
174. As with the employment and contract
work provisions discussed above, these provisions re-enact similar
sections in existing primary legislation which implement EC law.
Clause 55 prohibits discrimination against and victimisation
and harassment of members (and applicants for membership) of trade
organisations. Clause 51 prohibits discrimination against
and victimisation and harassment of holders of (and applicants
for) relevant qualifications.
175. The prohibition of discrimination against
members of trade organisations (and applicants for membership)
may conflict with the Article 10 and 11 rights of trade
unions by restricting their ability to choose their members. Although
these rights are engaged they are subject to various limitations
including the protection of the rights and freedoms of others.
The limitation here is set down in law, is necessary to comply
with the values of plurality, tolerance and broadmindedness which
are hallmarks of a democratic society and is for one of the specified
legitimate aims ie the protection of the rights and freedoms of
others. Therefore it is capable of being a legitimate interference
with those Article 10 and 11 rights.
176. Although a union's right to draw up
its own rules and administer its own affairs may extend to substantive
criteria such as the profession or trade exercised by an applicant,
it does not extend to criteria which are wholly unreasonable or
arbitrary. In striking a fair balance between competing interests,
the state enjoys a certain margin of appreciation in ensuring
compliance with the Convention. Discrimination, victimisation
or harassment on grounds of a protected characteristic contrary
to EC law would be unreasonable and arbitrary. Therefore the prohibition
does not curtail a union's ability to exercise its autonomy in
a lawful fashion, and it strikes a fair balance between the Article
10 and 11 rights of the union and those of its members
and prospective members.
177. Moreover, the prohibition is not "directed
at or calculated to interfere with the freedom of speech or thought…of
members of prospective members, who [are] left to think and say
whatever they [like]".[48]
Although Article 11 "embraces the freedom to exclude
from association those whose membership [an organisation] honestly
believes to be damaging to the interests of the society,"[49]
we think the prohibition of discrimination, victimisation and
harassment achieves the "fair balance that has to be struck
between the general interests of the community and the interests
of the individual" in respect of both Articles 10 and
11.[50]
Other activities
178. As with the employment and contract
work provisions discussed above, the following provisions re-enact
similar sections in existing primary legislation, most of which
implement EC law.[51]
Clauses 42 and 43 prohibit discrimination against and
victimisation and harassment of partners by firms and limited
liability partnerships. Clauses 45 and 46 prohibit discrimination
against and victimisation and harassment of barristers (including
pupils) and advocates (including devils). Clauses 47 and
48 prohibit discrimination, victimisation and harassment
in respect of appointments to personal or public offices (defined
in accordance with schedule 6). Clause 49 prohibits discrimination,
victimisation and harassment in making recommendations or giving
approval for appointments to public offices. Clause 56 prohibits
discrimination against and victimisation or harassment of local
authority members in connection with the carrying out of official
business.
179. The analysis and conclusions regarding
employment and contract work in paragraphs 170-171 above
applies to these clauses as well.
180. Because the prohibition of discrimination
prohibits anyone from discriminating against a person in relation
to instructing a barrister or advocate, an individual's ability
to engage the barrister or advocate of their choice is limited
to some extent. This potentially contravenes Article 6 which
includes a right for an individual charged with a criminal offence,
to defend himself through legal assistance of his own choosing.
181. The purpose of Article 6(3) is "to
ensure that both sides of the case are actually heard by giving
the accused, as necessary, the assistance of an independent professional."[52]
Where the accused chooses to be represented by a lawyer for whom
he will pay, his choice is not absolute. For example, regulation
of the qualification, conduct and number of lawyers is permissible.[53]
The Court has held in Croissant -v- Germany[54]
that the state may place reasonable restrictions on the right
of the accused to counsel of his choice and that factors to consider
were the basis of the defendant's objections and the prejudice
caused.
182. An argument could be made that a defendant
should be entitled to choose his representative on grounds of,
for example sex, where this would play more sympathetically with
the jury (eg picking a female barrister in a case of sexual assault).
However, there are reasonably strong counter-arguments to this
on the basis that his defence will not be prejudiced because he
will still be able to appoint counsel who are properly able to
defend him without discriminating because of any of the protected
characteristics. Further, the restriction has a legitimate aim
in preventing discrimination proscribed by EC law and is a proportionate
means of achieving that aim. In our view, an argument that the
defendant should be entitled to discriminate would be unlikely
to find favour at the Convention as it would be based on assumptions
unsupported by evidence about how a jury reacts to advocates based
on inherent characteristics.
Exceptions
183. Part 1 of Schedule 9 is about
occupational requirements. Paragraph 1 allows an employer
to discriminate in exceptional cases where having, or not having,
a particular protected characteristic (eg being a man or not being
a transsexual person) can be shown to be a genuine and determining
requirement for particular work. This exception, which meets the
requirements of EC law, replaces and harmonises the strand-specific
exceptions for occupational qualifications or requirements in
existing anti-discrimination legislation. Those are contained
in sections 7, 7A and 7B of the SDA 1975, sections 4A and 5 of
the RRA 1976, Regulation 7(2) of the Employment Equality (Sexual
Orientation) Regulations 2003, Regulation 7(2) of the Employment
Equality (Religion or Belief) Regulations 2003 and Regulation
8 of the Employment Equality (Age) Regulations 2006. There
is no right to work guaranteed by the Convention, and a person's
right to seek a particular type of employment (assuming such a
right can be said to exist) cannot constitute a "possession"
within the meaning of Article 1 of Protocol 1 (Legal
and General Assurance Co Ltd v Kirk[55]).
184. But an occupational requirement could
engage Article 8 of the Convention. If, for example, being
of a particular sexual orientation or religion or belief is a
requirement for a job, then the employer will obviously have to
ask applicants about their sexual orientation or religion or belief
in order to find out whether they meet the requirement. It is
doubtful whether or not a simple question could constitute an
interference with the exercise of the Convention right, particularly
when the applicant is not compelled to answer (though he or she
may not get the job if he or she does not). However, even if there
were an interference, we think it would be justified by the need
to protect the employer's rights: in other words, the employer
has a right to recruit persons on the basis of whether or not
it is satisfied that they can perform the functions of the job.
If an applicant's sexual orientation or religion or belief had
no bearing on his or her ability to do the job, then this would
not be an occupational requirement and so the employer would not
be justified in making the enquiry.
185. In addition, an occupational requirement
to be of a particular sex could engage Article 8 where it
is essential for the job to be held by either a man or a woman
in order to preserve privacy. For example, a woman using a public
lavatory or changing room might reasonably object if the attendant
were a man. An occupational requirement to be of the same sex
as the employer could also engage the right of the employer to
respect for his or her private life or home if, for example, the
job were that of his or her companion or carer. And an occupational
requirement to be of the same sex as co-workers or inmates could
engage their Article 8 rights if, for example, the work had
to be done in residence at a geographically remote or mobile location
without separate sleeping accommodation, showers or toilets, or
in a single-sex prison or hospital ward. But in none of those
cases do we believe that would there be an interference with the
exercise of Convention rights.
186. In R (on the application of Amicus)
v Secretary of State for Trade and Industry,[56]
the High Court held that the Employment Equality (Sexual Orientation)
Regulations 2003 did not interfere with rights under Article
8(1) at all. They add to existing rights. Regulation 7(2) limits
the scope of what is added, but does not interfere with any rights.
Nor do the 2003 Regulations produce any difference in treatment
in the enjoyment of rights falling within the ambit of the Convention;
they simply confer certain rights not to be discriminated against.
So regulation 7(2) is compatible with Article 14 of the Convention.
That reasoning should apply equally to other pieces of existing
anti-discrimination legislation and to corresponding exceptions
within these for occupational requirements.
187. Paragraph 2 allows employment
and appointment to offices for purposes of an organised religion
(which is not restricted to the priesthood) to be confined to
men (excluding transsexual people), or to single men who are not
gay, so as to comply with the doctrines of the religion or avoid
conflicting with the strongly held religious convictions of a
significant number of its followers. This exception harmonises
section 19 of the SDA 1975 and regulation 7(3) of the
Sexual Orientation Regulations 2003, which was impugned together
with Regulation 7(2) of those Regulations in the Amicus
case but survived the challenge. The court also held that there
is nothing in Article 8 of the Convention to preclude the
adoption of a general legislative measure such as Regulation 7(3).
188. Paragraph 3 allows work to be
confined to individuals with a particular religion or belief in
certain circumstances. As outlined above at paragraph x such an
occupational requirement could engage Article 8 of the Convention
as employers will have to ask applicants about their religion
or belief in order to find out whether they meet the requirement.
189. Paragraphs 4(1) and (2) narrow the
exception in section 85(4) of the SDA 1975 so as to make
this compatible with EC law. These provisions make it lawful for
women or transsexual people not to be recruited, promoted or transferred
to, or trained for, service in the armed forces where this is
appropriate and necessary in order to ensure the combat effectiveness
of the armed forces. This exception does not, however, permit
women or transsexual people to be discharged from the armed forces
simply because of their sex or transsexual status, so it would
not involve an interference with the exercise of their right to
respect for their private lives (cf. Smith and Grady v United
Kingdom[57]).
Paragraph 4(3) reproduces the current exemptions for the armed
forces from the employment provisions of the DDA 1995 and
the Employment Equality (Age) Regulations 2006, which are compatible
with EC law. The Framework Directive does not require, in particular,
the armed forces to recruit or maintain in employment persons
who do not have the required capacity to carry out the range of
functions that they may be called upon to perform with regard
to the legitimate objective of preserving their operational capacity.
190. Paragraph 5 makes it lawful for
providers of vocational training education to discriminate against
a person if the discrimination concerns training that would only
fit that person for employment which, by virtue of paragraphs
1-4, the employer could lawfully refuse to offer the person in
question. This exception harmonises regulation 20(3) of the Employment
Equality (Sexual Orientation) Regulations 2003, which was impugned
together with Regulation 7(2) and (3) of those Regulations in
the Amicus case but survived the challenge, with corresponding
exceptions in other anti-discrimination legislation.
191. Paragraphs 7 to 15 of Schedule
9 re-enact certain provisions in the Employment Equality
(Age) Regulations 2006. Paragraph 16 includes a new age exception
in relation to employer contributions to personal pension schemes.
192. Paragraph 8 provides that it is
not a contravention of the Bill to dismiss a relevant worker at
or over the age of 65 if the reason for the dismissal is
retirement. This is referred to as the "default retirement
age".
193. In a judgment dated 5 March 2009 in
the case of R (on the application of the Incorporated Trustees
of the National Council on Ageing) v Secretary of State for Business,
Enterprise and Regulatory Reform, the ECJ confirmed that provisions
in the Employment Equality (Age) Regulations 2006 providing
for a default retirement age were within the scope of Council
Directive 2000/78/EC. The case will now be returned to the High
Court where the court will consider the question of whether the
imposition of a default retirement age can be objectively justified
by the government. We await the determination of the High Court
on this issue.
194. We don't think anyone has,
to date, suggested that the default retirement age is incompatible
with Article 8. This may be because the more obvious means
of challenge is to argue that it is incompatible with the
Directive. In any event, we do not think that the case law supports
such a wide interpretation of Article 8 and we would take
the view that Article 8 is not engaged.
195. Paragraph 17 provides an exception
for the suspension of discretionary payments during maternity
leave. The exception is carefully circumscribed such that it does
not apply to maternity-related pay, pay in respect of times when
a woman is not on maternity leave or pay by way of bonus in respect
of times when she is on compulsory maternity leave, consistent
with the requirements of European law. No convention rights are
engaged.
196. Paragraph 18(1) provides that work-related
discrimination on grounds of sexual orientation does not occur
in relation to benefits payable for periods of service or where
the right accrued before 5 December 2005 (when the main
provisions of the Civil Partnership Act 2004 came into force).
Paragraph 18(2) provides that such discrimination does not occur
when benefits are conferred on married persons and civil partners
but not on others. These provisions might engage Article 8 or
Article 1 of Protocol 1 read with Article 14. However,
provisions supporting marriage and (where applicable in national
law) civil partnerships would appear to be compatible with the
Convention. Article 12 of the Convention enshrines the special
position afforded to marriage and European Court of Human Rights
case law indicates that it is compatible with Article 14 to
treat married and unmarried partners differently.
Chapter 2 of Part 5—Occupational Pension
Schemes
197. Clauses 58-59 address discrimination
in the context of occupational pension schemes. Clause 58 provides
for a "non-discrimination rule" to be implied into occupational
pension schemes. These provisions are derived from existing provisions
in Part 2 of the DDA 1995.
198. Clause 58 (8) provides a power
to specify by order particular practices, actions or decisions
relating to age which may constitute exceptions to the non-discrimination
principle. The power is based on the provisions of Article 6(1)
and 6(2) of Directive 2000/78/EC (the Framework Directive). The
intention is to replicate the exceptions currently specified in
schedule 2 to the Employment Equality (Age) Regulations 2006 in
secondary legislation.
199. Clause 63 has the effect of implying
a "sex equality rule" into occupational pension schemes.
This clause and clause 64 largely replicate the existing
provisions in s 62-65 of the Pensions Act 1995 and the
Occupational Pension Schemes (Equal Treatment) Regulations 1995 (made
under s 64 of the 1995 Act). These Regulations modify
the application of the Equal Pay Act 1970 in cases involving
the terms on which persons become members of occupational pension
scheme or the terms on which members of such a scheme are treated.
200. With the exception of clause 64, we
do not consider that the provisions related to occupational pensions
raise any separate issues in respect of Convention rights to those
raised below in relation to the general aspects of equal pay.
201. Clause 64 gives power to trustees
or managers of an occupational pension scheme by resolution to
make sex equality alterations to the scheme if they do not otherwise
have power to do so, or if the power to do is subject to the constraints
specified in clause 64 (2). Such alterations may be made
with retrospective effect. These provisions replicate those in
s 65 of the Pensions Act 1995. We do not consider that any
Convention rights are engaged (despite the fact that the changes
may be made retrospectively). Any alterations will be subject
to s 67 of the Pensions Act 1995, which restricts the manner
in which detrimental changes may be made to accrued rights in
occupational schemes. The employer would be required to make up
any additional funding required by the scheme as the result of
the operation of an equality rule. We do not consider that this
requirement would engage either Article 8 or Article 1 of
Protocol 1, since the requirements are imposed only in respect
of an obligation that the employer/scheme had, and should have
met, at the date in question.
Chapter 3 of Part 5 and Schedule 7—Equal
Pay
202. The clauses in Chapter 3 of Part
5 and the associated Schedules largely replicate existing
provisions in the Equal Pay Act 1970 ("EqPA") and
the Pensions Act 1995 governing equal treatment in relation
to pay and other terms and conditions of employment and in the
case of the latter, equal treatment in relation to occupational
pension schemes. The provisions implement the requirements of
EC law in this area, primarily Article 141 of the EC Treaty
and the relevant parts of the Recast Directive 2006/54. Chapter
3 brings the existing domestic provisions together under
the heading "equality of terms" in an attempt to simplify
them
203. Clauses 60 and 62 have the
effect of implying a sex equality clause into a person's terms
of employment where that person is engaged in like work, work
rated as equivalent or work of equal value to another person in
the same employment. The provisions apply to employees, those
appointed to a personal or public office and members of the armed
forces. References to "employee" and "employer"
in the text below are intended as shorthand and are to be taken
to encompass all of the above who fall within the scope of the
provisions.
204. Where a sex equality clause is implied
as a result of the operation of these provisions, the effect of
such a clause is to modify a term of an employee's contract which
is less favourable than a corresponding term in the comparator's
contract. Where a term which benefits the comparator is absent
from the employee's contract, the effect is to modify the latter
so as to include such a term. These provisions are aimed at achieving
equality between men and women in relation to pay and other terms
of employment and we do not consider that any Convention rights
are engaged.
205. Clause 61 defines like work, work
rated as equivalent and work of equal value for the purposes of
the equality of terms provisions. We do not consider that any
Convention rights are engaged by this provision. Clause 66 deals
with the respective application of the equality clause provisions
and the sex discrimination provisions to discriminatory terms
of employment. We do not consider that any Convention rights are
engaged by this provision.
206. Clause 65 provides a defence to
an employer to a claim for breach of an equality clause if the
employer can show that any difference in terms is genuinely due
to a material factor which is not gender related and in relation
to which any indirectly discriminatory effect can be objectively
justified. As a form of exception to the general rule requiring
equal pay for equal work, it could be argued that Article 14 read
with Article 1 of Protocol 1 is breached, in that the
clause clearly allows an employer to pay an employee more than
another employee of the opposite sex carrying out equal work.
However, we consider that this defence pursues a legitimate aim
in that it permits employers to regulate their own work force
and meet the requirements of their business (for example, by recognising
that market forces may sometimes require an employee recruited
for particular skills to be paid more than an existing employee)
and satisfies the requirements of the principle of proportionality
by ensuring that any reason for a difference in treatment must
be shown not to be tainted by gender discrimination and any disparate
impact on employees of one gender must be objectively justified.
We therefore consider any interference to be justified.
207. Clauses 68-72 are concerned with
pregnancy and maternity equality. They replicate and seek to simplify
the existing provisions in section 1(d)-(f) of the EqPA. The broad
effect of these provisions is to ensure that: any pay increase
awarded during the "protected period" as defined in
subsection (6) of clause 17 is reflected in a woman's maternity-related
pay if she would have benefited from it had she not been on maternity
leave; that a woman on maternity leave benefits from any pay by
way of bonus awarded in respect of the period before maternity
leave begins, after the protected period ends and in respect of
the period of compulsory maternity leave; and that any increase
in pay which a woman on maternity leave would have benefited from
after the protected period had she not been on maternity leave
is reflected in her pay after that period.
208. These clauses and clause 72 deal
with the respective application of the maternity equality clause
provisions and the pregnancy and maternity discrimination provisions.
Clause 72 simply replaces paragraph 5 of Schedule 5 to
the Social Security Act 1989 and replicates some of the Maternity
and Parental Leave Etc Regulations 1999. Broadly speaking it ensures
that when a woman is on maternity leave she must be treated as
though she is not for the purposes of her membership of and accrual
of rights under an occupational pension scheme and in relation
to any determination about the level of benefits she will receive
under the scheme. We do not consider that any Convention rights
are engaged by this provision.
209. Clause 73 makes any term of employment
which seeks to prevent an employee from disclosing details about
his pay unenforceable and makes the disclosure of such information
a protected act for the purposes of the prohibition against victimisation.
We have considered whether Article 8 is engaged by this provision
on the basis that it may interfere with the privacy of the employer
by preventing him from keeping the amount that he pays his employees
confidential. There is potential for Article 8 to be engaged
but it would be going somewhat further than the established case
law on privacy in the work context which is concerned with state-sanctioned
intrusion such as search of premises or phone-tapping. In any
event if Article 8 were engaged we consider that there are
strong arguments to support there being no breach of the Convention.
Any such interference would be considered justified as it pursues
the legitimate aim of protecting the rights and freedoms of others
by encouraging transparency and fairness in pay structures and
ensuring that employees are in a position to be able to bring
an equal pay claim. Enabling disclosure is a proportionate means
of achieving this aim particularly as such disclosure is limited
to the employee's colleagues and therefore the employer's commercial
interests are protected as far as is possible.
210. Paragraphs 1 and 2 of Schedule
7 set out exceptions to the equality of terms provisions
which relate to legal requirements on the employment of women,
particularly in relation to maternity. In relation to both of
these paragraphs, please see the analysis below at paragraph 306 in
relation to paragraph 2 of Schedule 22 (the exception
relating to the protection of women).
211. The remainder of Schedule 7 deals
with exceptions in relation to occupational pension schemes—no
Convention rights are engaged.
PART 6
Clause 80
212. This clause makes it unlawful for the
responsible body of any school to discriminate or victimise any
pupil or prospective pupil on the protected characteristics of
disability, gender reassignment, race, religion or belief, sex
and sexual orientation. It also makes it unlawful for schools
to harass any pupil or prospective pupil of a school on the protected
characteristics of disability, race and sex.
213. This re-enacts the existing legislation,
and extends it to cover harassment and victimisation in the protected
characteristics mentioned above.
214. Article 2 of Protocol 1 provides
that no person shall be denied education and that the State
shall respect the right of parents to ensure such education and
teaching in conformity with their own religious and philosophical
convictions. The italicised part of this Article is subject
to a UK reservation that affirms this principle only so far as
it is compatible with the provision of efficient instruction and
training and the avoidance of unreasonable public expenditure.
215. Case law has established that Article
2 of Protocol 1 constitutes a whole which is dominated
by its first sentence which enshrines the right of everyone to
education. Providing redress for a student or prospective student
who has been discriminated against or harassed because of a protected
characteristic (or that of their parent or parents) is compatible
with, and supports, Article 2 of Protocol 1, Article 9 (in
respect of religion or belief) or Article 14 when read with
another Article.
Clause 83 and schedule 10
216. Schedule 10 requires both local
authorities and schools to have plans to increase the access of
disabled pupils to the physical premises of schools, to the curriculum
and to information provided to pupils. This re-enacts provisions
inserted into the DDA 1995 by the Special Educational Needs
and Disability Act 2001. This provision may engage Article 1 of
Protocol 1 as it will probably require the alteration of
school premises over a period of time. As with the other requirements
to alter premises, usually immediately, rather than phased over
time, referred to above, we consider that this strikes a fair
balance between the rights of the local authority and school as
property owner, and the rights of the disabled person to fully
integrate into society.
Clause 84 and Schedule 11
217. Clause 84 gives effect to Schedule
11 which contains the exceptions to the general prohibition
on discrimination.
218. Part 1 of the Schedule permits
single-sex schools to discriminate in relation to admissions to
the school, and admit pupils of one sex only. This replicates
the provisions of the SDA 1975. We have considered compatibility
with Article 14 (taken with Article 2 of Protocol 1)
on the basis that although Article 14 does not require the
UK to take positive steps to prohibit discrimination in admission
to education, it does prohibit discrimination in the measures
the UK has chosen to adopt to protect the rights guaranteed by
Article 2 of Protocol 1.
219. The Convention recognises the need
for plurality and diversity in a State's education system, including
the right of parents to have their children educated in conformity
with their philosophical convictions. The UK has a long tradition
of single-sex educational institutions and there remains demand
for such education. We consider that the existence and operation
of such institutions is compatible with the Convention and that
this exemption is necessary to ensure that they can continue,
which supports the objective of Article 2 of Protocol 1.
220. Part 2 of the Schedule permits
"State" schools with a religious character and independent
schools with a religious ethos to discriminate in relation to
admission to the school and in relation to access to benefits,
facilities and services provided for pupils. This replicates the
provision in the Equality Act 2006.
221. The UK has a strong tradition of "faith
schools", as religious bodies historically largely provided
education and there remains a demand for such schooling. We consider
that the existence and operation of such schools is compatible
with both the Convention and the common law. It recognises the
right of parents to have their children educated in accordance
with their religious and philosophical beliefs. In addition, there
is explicit recognition in Article 9 of the importance of
religion and devotion to individuals. We consider the exemptions
necessary to ensure that the prohibitions in clause 80 do
not undermine or unduly interfere with the fundamental principle
in Article 9, as well as the objective of Article 2 of Protocol
1, albeit partly subject to a UK reservation.
222. Part 2 of the Schedule also exempts
from the discrimination provisions those matters relating to the
content of the curriculum and collective religious worship in
all schools. This also replicates provisions in the Equality Act
2006. Statutory obligations already exist on schools without a
religious character or ethos in relation to the National Curriculum,
and the basic curriculum as delivered in schools, which includes
religious education and sex education. There are further statutory
obligations and provisions in relation to collective religious
worship. The exemptions ensure that the new provisions do not
conflict with existing legislation that is itself compatible with
the Convention and in particular Article 2 of Protocol 1.
Clause 86
223. This clause makes it unlawful for the
responsible body of a further or higher educational establishment
to discriminate against, victimise or harass a student or prospective
student. All the protected characteristics are covered apart from
marriage and civil partnership.
224. This re-enacts the effects of the existing
legislation in respect of each of the strands. Providing redress
for a student or prospective student who has been discriminated
against or harassed because of a protected characteristic (or
that of their parent or parents) is compatible with, and supports,
Article 2 of Protocol 1 Article 9 (in respect of
religion or belief) or Article 14 when read with another
Article.
Clause 89 and Schedule 12
Part 1 of Schedule 12
225. Clause 89 gives effect to Schedule
12 which contains the exceptions to the general prohibition
on discrimination and harassment. Part 1 of the Schedule
permits discrimination in relation to admissions to single-sex
institutions. This replicates provisions in the SDA 1975. As with
the similar provision for schools, discussed in paragraphs [223-224]
above, we consider that it is compatible with Article 14 (taken
with Article 2 of Protocol 1).
Part 2 of Schedule 12
226. Paragraph 5 provides a power which
enables a Minister of the Crown to designate an institution as
having a religious ethos. The effect of designation is that the
institution can give preference in admissions to applicants of
a particular religion or belief if it does so to preserve its
religious ethos provide that the course does not amount to vocational
training. The intention is to use this power to replicate the
effect of provisions in the Employment Equality (Religion or Belief)
Regulations 2003 with respect to certain Catholic Sixth Form
Colleges (CSFCs), currently listed in Schedule 1B to those Regulations.
227. The limited exemption this power would
give is necessary to preserve the faith ethos of these institutions
which support the plurality envisaged by Article 2 of Protocol
1. Further, the exemption is necessary to ensure that the general
prohibition does not unduly interfere with Article 9 right,
further supported by the weight section 13 of the HRA 1998 attaches
to freedom of religion.
Clause 93 and schedule 13
228. Clause 93 and schedule 13 make
provision about reasonable adjustments within education, please
see paragraphs [80-84] for analysis. The only issue specific to
education is the provision at paragraph 8, providing for confidentiality
requests which will support Art 8.
Part 7 and Schedules 15 and 16
229. Part 7 and Schedules 15 and
16 address discrimination, victimisation and harassment in
the field of private clubs in relation to all strands other than
marriage and civil partnership. These provisions re-enact the
substance of the existing provisions in the RRA 1976, the DDA
1995 and the Equality Act (Sexual Orientation) Regulations
2007 in relation to the protected characteristics of race,
disability and sexual orientation.
230. Clause 97 prohibits discrimination,
harassment (though not in respect of religion or belief or sexual
orientation) and victimisation on protected grounds by a club
in relation to potential members and potential guests and also
to actual members and guests. A club is defined for these purposes
in clause 102 as being an association with more than 25 members
and the membership of which is not open to the public or section
of the public but instead is regulated by the rules of the club
so as to involve some form of genuine selection process. The requirement
for there to be 25 or more members and for membership to
be regulated by rules serves to ensure that the prohibition does
not unduly impact on small private gatherings or ad hoc gatherings.
For example, family celebrations or a book club organised amongst
friends.
231. The prohibition in clause 97 is
subject to the exception contained in Schedule 16. By virtue of
Schedule 16, a club is not in breach of the non-discrimination
provisions if it restricts membership solely to those who share
the same characteristic. For example, men only clubs, a club for
the visually impaired or a club for those of Afro-Caribbean descent
are all lawful. Such single characteristic clubs are similarly
entitled to restrict guests to those who share the same characteristic
as members.
232. The prohibition on discrimination by
private members' clubs in clause 97 potentially engages Articles
8 and 11 of the Convention in that an individual might
claim that they should be free to associate with others in their
private life even where such others are determined by the fact
that they do not have a particular protected characteristic. Equally,
the private members' club/association could itself claim interference
with its Article 11 rights in that it should be free to choose
its own members (see, for example, Associated Society of Locomotive
Engineers and Fireman (ASLEF) v United Kingdom[58]).
As the European Court of Human Rights stated in that case "[w]here
associations are formed by people, who, espousing particular values
or ideals, intend to pursue common goals, it would run counter
to the very effectiveness of the freedom at stake if they had
no control over their membership. By way of example, it is uncontroversial
that religious bodies … can generally regulate
their membership to include only those who share their beliefs
and ideals."[59]
233. The exception for single characteristic
clubs in Schedule 16 means that it is open, for example,
to a man to associate only with other men by joining a gentleman's
club or for homosexuals to be able to form an association whose
membership is limited to other homosexuals. We are therefore confident
that the interference with an individual's right to respect for
private life or freedom of association and an association's freedom
to choose its members under clause 98 is justified under
Articles 8(2) and 11(2) of the Convention. Because it is in accordance
with the law and, by virtue of the exception in Schedule 16, is
no more than is necessary for the protection of the rights
and freedoms of others, namely the Article 8, 11 and 14 rights
of others to be able to freely associate with others without discrimination.
234. It could be argued, in the alternative,
that the exception for single characteristic clubs is itself in
breach of Convention requirements in that it breaches the Article
11 (and possibly Article 8) rights of certain individuals,
both individually and in conjunction with Article 14. It is apparent,
therefore, that the prohibition in clause 97 and the exception
to it at Schedule 16 constitute a potential conflict between
the Article 11 (and 8) rights of some individuals and associations,
on the one hand, and the same rights, alone and in conjunction
with Article 14, of other individuals, on the other hand. 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[60]
§ 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.
235. Schedule 16 also contains an exception
which allows an association or club to differentiate in the terms
on which it allows a pregnant woman to become a member of the
club or in how it affords access to benefits to a member who is
pregnant where it reasonably believes that to do otherwise would
create a risk to the woman's health and safety and also that the
club would impose similar restrictions in respect of other persons
with other physical conditions. To the extent that any such differential
treatment might be said to interfere with the woman's Article
8 or Article 11 rights (alone and in conjunction with
Article 14), it is considered to be justified as being no more
than is necessary to ensure the protection of health. The fact
that the association's belief as to risk must be reasonable (ie
an objective rather than subjective standard) and that it would
take similar measures in relation to individual's with other physical
conditions serves to ensure that any restriction is indeed proportionate
to the legitimate aim of ensuring safety.
236. Schedule 15 sets out the duty
of reasonable adjustment on private clubs for the purposes of
the disability strand. The commentary at paragraphs 85-89 above
also applies here.
PART 8
Prohibited conduct: ancillary
237. These clauses provide for liability
under the Bill to be imposed in some wider circumstances than
arise in other parts. For example, clause 103 imposes liability
for harassment and discrimination after the relevant relationship
has ended and clause 106 imposes liability on someone who
induces or instructs another to do anything in relation to a third
party that constitutes a contravention of the substantive Parts
of the Bill. The clauses are parasitic on the earlier substantive
provisions of the Bill. We do not consider that they raise any
separate issues in respect of the Convention to those already
raised by the prohibition on discrimination, harassment and victimisation
in the substantive Parts of the Bill.
PART 9 ENFORCEMENT
238. Clauses 107, 108 and 114 set
out the scheme for enforcement of obligations imposed by the Bill.
Clause 107 provides that there are three methods of enforcing
the obligations imposed by the Bill. First, proceedings brought
under the Bill in the civil courts or employment tribunal; secondly,
proceedings brought by the Equality and Human Rights Commission
under the Equality Act 2006; thirdly, judicial review or its Scottish
equivalent and through specified immigration proceedings.
239. Clauses 108 and 114 provide
which claims must be brought in the civil courts and which in
the employment tribunals and other points relating to jurisdiction.
240. Article 6 requires the state to
provide access to an independent and impartial tribunal so that
an individual may have his civil rights and obligations determined
at a fair and public hearing. These clauses fulfil that requirement
and regulate the way in which claims can be brought. Although
they limit how claims are to be brought they do not limit access
to the court and will not be in breach of Article 6 because
as the European Court of Human Rights stated in Golder -v-
United Kingdom,[61]
the right of access to court is not absolute, "by its very
nature it calls for regulation by the state which may vary in
time and place according to the needs and resources of the community
and of individuals".
241. Clause 109 exempts certain immigration
cases from the jurisdiction of the civil courts. However, if there
is an allegation of discrimination in the making of an immigration
decision, then an appeal can be made on that ground and clause
108(3) permits the relevant immigration tribunal to hear that
claim. The exception therefore only operates to direct the claim
to a different tribunal whose procedure is also compliant with
Article 6, it does not deprive the claimant of access to court
or limit that right.
242. Clause 110 exempts certain claims
regarding disability discrimination in schools from the jurisdiction
of the civil courts. However, these claims can be heard in specialist
tribunals whose procedure complies with Article 6 and the
claimant's rights under Article 6 are therefore not infringed.
Schedule 17 makes further provision regarding enforcement
of these claims and replicates provisions in the DDA 1995 which
were inserted by the Special Educational Needs Disability Act
2001. No Convention rights are engaged by it.
243. Clause 114 sets out the jurisdiction
of the employment tribunals and includes two exceptions which
could potentially engage Article 6. The first is at subsection
(7) and prevents a responsible person from seeking a declaration
about an equal pay dispute, in a case where the employee is a
member of the armed services. As this only restrains the right
of the Crown, which is the responsible person in relation to armed
services members, and the Crown does not come within the definition
of "victim" under the Convention, no breach of Convention
rights arises. The second is at subsection (8) and prevents a
claim regarding a qualification being brought to the employment
tribunal until appeal proceedings have been brought and concluded,
where such appeal is available. This requirement to exhaust the
appeal avenue before bringing tribunal proceedings pursues the
legitimate aim of keeping specialist decisions within the ambit
of the experts who can best deal with them. It is proportionate
to that aim in that the only restriction on access to the tribunals
is to delay that access until the appeal is concluded.
244. Clause 115 imposes a requirement
on members of the armed services to make and pursue an internal
complaint regarding any discrimination before they bring a claim
regarding that matter to the employment tribunal. Article 6 is
engaged as this does limit their ability to complain to a fair
and impartial tribunal but the limit is pursuing a legitimate
aim and is proportionate to that aim. It's aim is to ensure that
discrimination issues are dealt with swiftly and locally within
the armed services and the provision does not exclude access to
the tribunal it merely requires an internal complaint as a prior
step, which is proportionate to this aim. Further, members of
the armed services are given a longer time in which to bring a
claim to the tribunal, six months instead of three, to take account
of this extra requirement (clause 118(2)).
245. Clause 111 makes special provision
for the procedure in discrimination cases in the civil courts
where the interests of national security need to be protected.
It permits rules of court to be made to exclude the parties from
the proceedings or part of them or to exclude an assessor. Subsection
(4) gives a power for the rules to permit an excluded party to
make a statement to the court before their exclusion commences.
Subsection (5) provides a power for the rules to permit the court
to keep the reasons for its decision. Subsections (7), (8) and
(9) make provision to allow the Attorney General or the Advocate
General for Scotland to appoint a lawyer to represent the interests
of the excluded party during their exclusion.
246. Article 6 is clearly engaged by
clause 111 as it potentially infringes some of the procedural
guarantees of a fair trial protected by Article 6. Those are,
the right of the person affected by the decision to be present
and participate in the proceedings and their right to know the
reasons for a court's decision. These rights are only compromised
by this clause to the extent necessary to satisfy the legitimate
aim of protecting national security. This is an aim that is permitted
under Article 6(1). Although a party may have to be excluded they
can be permitted to make a statement before that exclusion commences
and they can be represented by someone with the appropriate clearance
while they are excluded. The reasons for the court's decision
may be kept secret in whole or only in part. Therefore it is considered
that the judicial procedures outlined will comply with the Convention
because they are a proportionate response to the legitimate aim
of protecting national security interests. Steps are taken in
the provisions to ensure, as far as is consistent with protecting
the interests of national security, that the principle of "equality
of arms" between the parties to the proceedings is respected
and that the ability of the party to argue their case before the
court is not prejudiced.
247. Clause 112 imposes time limits
for bringing discrimination cases to the civil courts. In the
majority of cases the time limit is six months and in some prescribed
circumstances it is nine months. A time limit does act as a restriction
on access to the court and it therefore needs to pursue a legitimate
aim and meet the test of proportionality. The European Court of
Human Rights has said in Stubbings -v- United Kingdom[62]
that limitation periods serve important purposes, namely to ensure
legal certainty and finality, to protect defendants from answering
stale claims and to prevent injustice arising from the deciding
of a case long after the events which took place. It is considered
that the periods imposed by this clause are not unduly short,
especially when the immediate nature of discrimination claims
is considered, and their length is proportionate to the legitimate
aims they serve.
248. Clause 117 imposes time limits
for bringing discrimination cases to the employment tribunals.
In the majority of cases the time limit is three months, armed
forces members are given six months in which to bring a claim.
It is considered that the three month time limit is proportionate
given the less formal nature of proceedings before an employment
tribunal and the need to ensure that employment disputes are resolved
as swiftly as possible. The same arguments apply in relation to
clause 123 which deals with time limits in equal pay cases.
249. Clauses 113 and 118 set out
the remedies which are available to a claimant in the civil courts
and the employment tribunal for a breach of this Bill. No Convention
rights are engaged.
250. Clause 119 prevents the remedy
of a recommendation being available in a case which has been ordered
or directed to be "national security proceedings", where
the recommendation would affect certain bodies connected with
the UK's national security. This restriction does not affect the
procedural fairness of the proceedings as it relates to the remedies
that are available and therefore Article 6 is not engaged.
251. Clause 120 sets out the remedies
available in cases about occupational pension schemes. No Convention
rights are engaged.
252. Clauses 127 and 128 replicate
the provisions of the Occupational Pension Schemes (Equal Treatment)
Regulations 1995 (SI 1995/3183), which modify the Equal Pay
Act 1970 in its application to occupational pensions claims.
We do not consider that any Convention rights are engaged, despite
the retrospective application of some of these provisions. The
right to join a pension scheme may be backdated to 8 April
1976, the date of the judgment in Defrenne v Sabena [1976]
2 CMLR 98 which established that Article 119 (now
Article141) of the Treaty was directly effective. However, it
is only from 17 May 1990, the date of the judgment in Barber
v Guardian Royal Exchange Group [1990] IRLR 240, that employers
may be required to pay any contributions needed to secure the
rights of the member. We do not consider that any Article 1 Protocol
1 issues are engaged because it the ECJ has held on a number
of occasions that pensions are deferred pay for the purposes of
Article 141.
253. Clause 130 provides that the burden
of proof in claims under the Bill is initially on the claimant
but that once they have established facts from which the court
or tribunal could find that the defendant was in breach of the
provision alleged, then the burden shifts to the Defendant to
show that he is not in breach. This means that the burden shifts
to the Defendant at the stage where he is required to provide
a reasonable explanation of an act that is capable of being unlawful
discrimination, victimisation or other conduct prohibited under
the Bill. Article 6 does not prescribe the burden of proof
applicable in civil proceedings and will not be infringed providing
that the equality of arms principle is respected. The burden imposed
here is clearly well within that principle and no potential infringement
of Article 6 arises.
254. Clause 131 prevents cases that
have been decided under the predecessor legislation of the Bill,
being re-opened as "new" cases under the Bill. No Convention
rights are engaged.
255. Clause 132 provides a power for
a Minister to prescribe the form of questionnaire that a claimant
or potential claimant under the Bill may use to obtain information
from the person who they think may have discriminated against
them or in some other way breached the provisions of the Bill.
It also permits a court or tribunal to draw inferences from a
failure to answer a questionnaire or an evasive or equivocal answer.
Such inferences are permitted in order to encourage the questioned
party to consider early on the strength of their case and to plead
it accurately so that its disposal by the court or tribunal is
more straightforward and litigation issues are correctly identified
early on in the proceedings. This is a legitimate aim for the
provision and the sanction for the questioned party, namely inferences
being drawn about their case, is proportionate to that aim. The
fairness of the proceedings is maintained and Article 6 is
not infringed.
PART 10 CONTRACTS
ETC
256. The following provisions re-enact similar
sections in existing primary legislation and implement EC law.
257. Clauses 136 and 137 render
unenforceable a term of a contract to the extent that it constitutes,
promotes or provides for prohibited treatment. Clause 138 renders
a term unenforceable to the extent it purports to exclude or limit
a provision of the Bill, except for specified settlement contracts.
258. Clauses 139-140 render void or
unenforceable terms of collective agreements and rules of undertakings
to the extent that they provide for prohibited treatment.
259. Rendering void or unenforceable the
terms of contracts or collective agreements potentially contravenes
Article 1 of Protocol 1 to the extent that the result
deprives an individual of the peaceful enjoyment of his/her possessions.[63]
However, where it is in the public interest to do so and subject
to the conditions provided for by law, no breach of the Convention
arises. There is ample case-law under the HRA 1998 to the
effect that the test of justification is very favourable to the
public authority concerned. There has been little advance on James
v UK,[64]
where it was held that a justification will succeed unless it
is manifestly without reasonable foundation. The justification
here of protecting the broader social purposes of anti-discrimination
law is clearly sufficient and the interference with property rights
is proportionate as procedural safeguards are included to ensure
that every person affected is given notice and afforded an opportunity
to make representations.
PART 11 ADVANCEMENT
OF EQUALITY
260. Clause 143 sets out a new integrated
positive duty which requires public authorities to have due regard
to the need to eliminate unlawful discrimination, harassment and
victimisation under the Act and to advance equality of opportunity
and foster good relations between different protected groups.
261. The "positive duty" model
requires public authorities to consider taking proactive steps
to root out discrimination and harassment and advance equality
of opportunity in relation to their functions—from the design
and delivery of policies and services to their capacity as employers.
The duties require public authorities to integrate equality considerations
into all areas of a public authority's work and to give consideration
to taking positive steps to dismantle barriers. The advancing
equality of opportunity limb reflects the fact that in order to
ensure full equality in practice, this may necessitate a difference
in treatment, rather than the same treatment.
262. It is considered highly unlikely that
a public body subject to the obligations of the new duty enjoys
Convention rights. As for the way in which such bodies discharge
the duty, the duty does not create any new private law rights
and must operate within the confines of the law. This means that
the positive duty cannot sanction action which goes beyond what
discrimination law permits.
263. Clause 152 allows positive action
measures to be taken. In both EC and domestic law, it is accepted
that in order to achieve full equality in practice, disadvantaged
groups may actually require different treatment and equal treatment
may perpetuate any disadvantage, because not all groups start
off from the same position. This is a purely permissive provision
which allows measures to be taken to overcome or minimise any
disadvantage or to encourage participation in an activity where
participation is disproportionately low. As this provision is
an exception to the equal treatment principle, by definition,
any measures taken in favour of a disadvantaged group will discriminate
against advantaged groups. This may raise Article 14 concerns
where other substantive Convention rights are engaged, for example,
Article 8. However, we consider that such discrimination could
be justified because it is in pursuance of a legitimate aim, which
is to help disadvantaged groups to achieve a level playing field.
The provision has an in-built proportionality test, in that in
can only be invoked in certain cases—and where the disadvantage
etc ceases, it can no longer be used.
264. Schedules 18 and 19 do not
give rise to any human rights issues.
PART 12 DISABLED
PERSONS: TRANSPORT
Clause 154: Taxi accessibility
170. This clause empowers the Secretary
of State to make regulations for the purpose of requiring taxis
to be designed and fitted out to improve their accessibility for
persons who have disabilities.
171. Article 1 of Protocol 1 could
be potentially engaged by this clause. This is because any regulations
made under clause 154 would represent an impediment on the
freedom of the owners or operators of taxis to have vehicles designed
and fitted out as they please.
172. The objective behind this provision
is to ensure that all taxis are designed so as to ensure that
people with disabilities are able to travel in them in reasonable
comfort and safety, thereby improving their mobility. We believe
that the objective is within the proviso to article 1 which
recognises the right of States to enforce such laws as are deemed
necessary to control the use of property in accordance with the
general interest.
Clause 156: Designated transport facilities
173. This clause empowers the Secretary
of State in England and Wales and the Scottish Ministers to make
regulations requiring the application of taxi provisions contained
in Chapter 1 of Part 7 to vehicles used in the provision
of services under a franchise agreement.
174. Article 1 of Protocol 1 could
be potentially engaged but the same arguments apply as in the
case of clause to justify the provision.
Clause 157: Taxi licence conditional on compliance
175. This clause imposes a requirement on
a licensing authority to grant a licence for a taxi to ply for
hire on when it complies with the provisions of the taxi access
regulations. The same considerations apply here as to clause 155.
Clauses 158 and 159
176. No Convention rights are engaged.
Clauses 162 to 165: Carrying assistance dogs
177. These clauses impose a requirement
on the driver of a taxi or private hire vehicle to carry an assistance
dog which is accompanying a disabled passenger. Clause 164 also
imposes a requirement on an operator of a private hire vehicle
in relation to failing or refusing to accept a booking where an
assistance dog would be accompanying a disabled passenger and
to not imposing an additional charge.
178. Consideration was given whether these
clauses might potentially engage article 8 (right to respect
for private life) in so far as the carrying of dogs within a vehicle
might impact on the driver's physical health. Clauses 163 and
165 allow an application to be made to a licensing authority
on medical grounds taking into account the physical characteristics
of the vehicle for a certificate exempting the driver from such
requirements. On that basis it is considered that these clauses
are compatible with article 8, in so far as it might be engaged.
Clause 166: Appeal against refusal of exemption
certificate
179. This clause allows a right of appeal
to a magistrates' court by a person who has been refused an exemption
certificate by the licensing authority.
180. Article 6 would be engaged by
this clause which is compliant with article 6 because it
provides for appellants civil rights to be determined by a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law, and directly subject
to the HRA 1998.
Chapter 2—Public Service Vehicles
Clauses 168 to 171: PSV accessibility
181. These clauses empower the Secretary
of State to make regulations for the purpose of requiring public
service vehicles to be designed and fitted out to improve their
accessibility for persons who have disabilities.
182. Article 1 of Protocol 1 could
be potentially engaged by these clauses. This is because any regulations
made under them would represent an impediment on the freedom of
public service vehicle owners or operators to have their vehicles
designed and fitted out as they please.
183. However, the purpose is that all public
service vehicles used for public transport should be compliant
with the appropriate design and operational standards so as to
ensure that people with disabilities are able to use them in reasonable
comfort and safety, thereby improving their mobility. The objective
is believed to be within the proviso to article 1 which recognises
the rights of States to enforce such laws as they deem necessary
to control the use of property in accordance with the general
interest.
Clause 172: Special authorisations
184. No Convention rights are engaged.
Clause 173: Review and appeal
185. This clause makes provision for an
applicant to request the review of any refusal to issue an approval
certificate or to appeal against any decision refusing to issue
an accessibility certificate or approval certificate within a
prescribed time period. Such a decision, or the failure to make
the decision within a reasonable period of time, could be the
subject of judicial review.
186. Article 6 of the Convention (right
to fair trial for the determination of civil rights) may be engaged.
However the clause would be compliant with article 6 because
the availability of judicial review would enable the civil rights
and obligations of the applicant to be determined by a fair and
public hearing within a reasonable time by an independent and
impartial tribunal which is directly subject to the application
of the HRA 1998.
Clause 174: Fees
187. No Convention rights are engaged.
Clause 175: Rail vehicle accessibility regulations
265. This clause empowers the Secretary
of State to make regulations for the purpose of requiring rail
vehicles to be designed and fitted out to improve their accessibility
for persons who have disabilities.
266. Mandatory European rail vehicle accessibility
standards came into force in the UK on 1 July 2008 which
apply to the so-called interoperable rail system (ie the rail
system to which the European interoperability directives apply,
ie the major lines of the UK main line rail system). So the power
is limited to those rail vehicles which are not used on the interoperable
rail system (ie the power would apply mainly to so called "light
rail" systems such as the London Underground, the Docklands
Light Railway and the Tyneside Metro, and also to trams and other
forms of guided transport).
267. This clause replaces, without substantive
amendment, section 46 (rail vehicle accessibility regulations)
of the DDA 1995, as it had been prospectively amended from a time
to be appointed by the Disability Discrimination Act 2005 and
by measures to facilitate the coming into force of the European
standards.
268. The clause would bring within scope
of the Secretary's State power, vehicles which were first brought
into use prior to 1999. The existing power currently only applies
to rail vehicles first brought into force after 31 December
1998.
269. The clause also requires the Secretary
of State to use the regulation making power to set an "end
date" of no later than 1 January 2020 in rail vehicle
accessibility regulations, by which time all rail vehicles within
scope of the clause will be required to comply with such regulations
made under this clause.
270. Consideration has been given as to
whether this clause represents an interference with rights under
the Convention. The only Article of the Convention which it seems
could potentially be engaged by this clause would be Article 1 of
Protocol 1 (protection of property). This is because any
regulations made under the clause would represent an impediment
on the freedom of rail vehicle owners and operators to have their
vehicles designed and fitted out as they please.
271. However, the purpose is that all light
rail vehicles used for public transport should in due course be
compliant with appropriate design and operational standards so
as to ensure that disabled persons are able to use them in reasonable
comfort and safety, therefore improving their mobility. This objective
is believed to be within the proviso to Article 1 which recognises
the right of States to enforce such laws as they deem necessary
to control the use of property in accordance with the general
interest.
Clauses 176-180
272. No human rights issues arise in relation
to these clauses.
Schedule 20: Rail vehicle accessibility: compliance
Paragraphs 1 to 4: Rail vehicle accessibility
compliance certification
273. Paragraphs 1 to 4 replace,
without substantive amendment, sections 47A to 47D of the DDA
1995, (as inserted by the Disability Discrimination Act 2005 but
not commenced). They introduce a new requirement for all rail
vehicles which are subject to rail vehicle accessibility regulations
and which are prescribed by regulations, or of a prescribed class
or description, to have a valid rail vehicle accessibility compliance
certificate.
274. It is proposed that compliance certificates
would have to be obtained for all new vehicles first used after
a date which would be prescribed in regulations, and also for
all existing vehicles where they undergo relevant refurbishment
works after a prescribed date.
275. The Secretary of State would consider
applications for compliance certificates in accordance with procedures
to be set out in regulations which would be made under Paragraph
2 on the basis of a report of a compliance assessment submitted
with the application, as described in Paragraph 3.
276. If the Secretary of State refused an
application for a certificate, the applicant would have the right
to request a review of that decision within a time period which
would be prescribed in regulations, (sub-paragraph 1(7)). Such
a decision, or the failure to make the decision within a reasonable
time, could be the subject of judicial review.
277. Paragraph 3 provides that any
regulations made under it would have to make provision for a procedure
to resolve disputes between an applicant for a compliance assessment
and an appointed assessor. Such disputes would be referred to
the Secretary of State for decision.
278. With regard to the Convention it seems
that paragraphs 1 to 4 could potentially engage Article
1 of Protocol 1 (protection of property). Any prohibition
on the use of a rail vehicle without their being a compliance
certificate in force relating to it would represent an impediment
on the freedom of rail vehicle owners and operators to use their
property as they see fit. Also sub-paragraph 1(6) would empower
the Secretary of State to require a rail vehicle operator to pay
a penalty if the operator used a rail vehicle without a compliance
certification in force in respect of the vehicle.
279. However, the purpose of the compliance
certificate regime would be to ensure that all vehicles which
require them would be made compliant with appropriate design and
operational standards to ensure that disabled persons are able
to use them in reasonable comfort and safety, therefore improving
their mobility. This objective is believed to be within the proviso
to Article 1 which recognises the right of States to enforce
such laws as they deem necessary to control the use of property
in accordance with the general interest.
280. Finally, it would appear that Article
6 of the Convention (right for fair trial in the determination
of civil rights) may be engaged in that insofar as the Secretary
of State exercises any of the powers in these paragraphs (other
than the power to charge a penalty under sub-paragraph 1(6)) an
aggrieved party could challenge a decision of the Secretary of
State by way of judicial review. However, these paragraphs would
be compliant with Article 6 because the availability of judicial
review would enable the civil rights and obligations of the applicant
to be determined by a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law,
and directly subject to the HRA 1998, with judgement being pronounced
publically.
281. With regard to the Secretary of State's
power to charge a penalty under sub-paragraph 1(6), any determination
of a rail vehicle operator's civil rights would also engage Article
6 of the Convention (right for fair trial in the determination
of civil rights). Article 6 would be engaged as paragraph
12 provides a right of appeal against the imposition of a
penalty to a court of law. This is compliant with Article 6 because
it provides for appellants civil rights to be determined by a
fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law, and directly subject
to the HRA 1998, with judgement being pronounced publically.
282. Paragraphs 5 to 12: Penalties
for rail vehicles not conforming with accessibility regulations,
or for rail vehicles being used otherwise than in conformity with
accessibility regulations, and associated inspection and enforcement
powers
283. These paragraphs reproduce existing
provisions inserted into the DDA 1995 by the Disability Discrimination
Act 2005 but not commenced. They set out provisions for the
imposition and enforcement of civil penalties against the operators
of rail vehicles not compliant, or used in a way not compliant,
with rail vehicle accessibility regulations. They would replace
the existing criminal liability attaching to the use of non-compliant
rail vehicles, currently set out in subsections 46(3) and (4)
of the DDA 1995 (prospectively repealed by the Disability
Discrimination Act 2005).
284. Paragraphs 5 and 6 set out
the procedure to be followed by the Secretary of State where it
appears that a rail vehicle is being used in breach of rail vehicle
accessibility regulations and empowers the Secretary of State
to serve notices and charge penalties for non-compliance.
285. Paragraph 7 would permit the Secretary
of State to authorise the inspection of vehicles and, if necessary,
to permit inspectors to enter premises to carry out such inspections.
It provides a power to charge a penalty for obstructing such inspections.
286. Paragraph 8 empowers the Secretary
of State to serve notices requiring a rail vehicle number or other
identifier in default of which a penalty may be charged and power
to require details of steps taken to comply with certain notices.
287. Paragraph 9 makes provision in
relation to the amount, due date and recovery of any penalties
imposed under this Schedule (with details to be set out in regulations).
Paragraph 10 provides for the issue by the Secretary of State
of a code of practice specifying matters to be considered in determining
such penalties. Paragraph 11 sets out the procedure for imposing
such penalties. The procedure would include a right for a person
made subject to a penalty to lodge an objection with the Secretary
of State, who would then review the imposition of the penalty
and make a decision to reduce, cancel or uphold the penalty. Paragraph
12 provides a right of appeal to a court on the grounds the
person is not liable to the penalty or that the amount is too
high.
288. With regard to the Convention it seems
that paragraphs 5 to 12, in so far as they would empower
the Secretary of State to charge penalties, would engage Article
1 of Protocol 1 (protection of property).
289. However, the purpose of these penalty
imposing powers would be to enforce and underpin the integrity
of the rail vehicle accessibility regime to ensure that rail vehicles
comply with appropriate design and operational standards to ensure
that disabled persons are able to use them in reasonable comfort
and safety, thereby improving their mobility. This objective is
believed to be within the proviso to Article 1 which recognises
the right of States to enforce such laws as they deem necessary
to control the use of property in accordance with the general
interest.
290. With regard to the Secretary of State's
power to charge a penalty under paragraphs 5 to 8, any determination
of a rail vehicle operator's civil rights would also engage Article
6 of the Convention (right for fair trial in the determination
of civil rights). Article 6 would be engaged as paragraph
12 provides a right of appeal against the imposition of a
penalty to a court of law. This is compliant with Article 6 because
it provides for appellants civil rights to be determined by a
fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law, and directly subject
to the HRA 1998, with judgement being pronounced publically.
291. Insofar as Paragraph 7 empowers
the Secretary of State to authorise inspectors to enter premises
and inspect vehicles, Article 8 of the Convention (right
to respect for private and family life) may be engaged. The ECJ
has accepted in case law that Article 8 may extend to business
premises. However, the proviso to Article 8 recognises that
interference with its exercise by a public authority would be
acceptable where done in accordance with the law and as necessary
in a democratic society in the interests of (inter alia) the protection
of the rights of others. It is believe this proviso would apply
as the exercise of such powers of entry and inspection could be
reasonably necessary in order to enforce accessibility standards
required by law for the benefit of disabled persons.
Paragraph 13: Forgery etc.
292. Paragraph 13 has the effect of
extending the operation of Clause 181 (forgery etc.) in order
to bring forgery etc of compliance certificates within its scope,
making such activities criminal offences under that clause. As
such, the paragraph in effect replicates the changes made to section
49 (forgery and false statements) of the DDA 1995 as
amended by the Disability Discrimination Act 2005 (but not
commenced).
293. Those guilty of these offences would
be liable for fines or imprisonment. Paragraph 13 therefore
engages Articles 5 (right to liberty and security) and 6 (right
to a fair trial). However, it would be compatible with the Convention
because any arrest in relation to such an offence, or any custodial
sentence arising from it, would only be possible in accordance
with due process of law and the decision of a competent court.
294. As the trial forum would be a UK criminal
court it would be directly subject to the HRA 1998. The enforcement
procedures relating to such offences and the proceedings of the
courts required to adjudicate in relation to such enforcement
would be fully compliant with the requirements of Article 6.
Paragraphs 14 and 15
295. No human rights issues arise in relation
to these paragraphs.
PART 13 AND
SCHEDULE 21 DISABILITY:
MISCELLANEOUS
296. This Part gives effect to Schedule
21 which makes supplementary provision about reasonable adjustments.
The analysis at paragraphs 85-89 above apply here.
PART 14 AND
SCHEDULES 22 AND
23 GENERAL EXCEPTIONS
297. Clause 185 excuses conduct made
unlawful by the Bill if it is necessary for the purpose of safeguarding
national security. This exception simplifies and harmonises the
exceptions for national security in existing anti-discrimination
legislation. An example of when this exception might apply would
be in defence of a claim of direct race discrimination by persons
on whom pre-employment checks had been carried out which were
dependent on their nationality. In such a situation there is the
potential for Article 8 read with Article 14 to be engaged.
The exception would be consistent with Convention rights because
it could only apply if the steps taken were necessary to
safeguard national security—thus for it to apply the justification
and proportionality elements of the Article 8(2) proviso would
have to be satisfied.
298. Clause 187 concerns charities.
In our view the subsections outlined below engage Convention rights.
299. Subsections (1), (2), (9) and (10)
excuse unlawful discrimination outside work (or generally in the
case of disability discrimination) through charities restricting
their benefits to persons who share a protected characteristic
if this is in accordance with their charitable instrument and
either objectively justified or lawful positive action. These
provisions narrow and harmonise with section 43 of the SDA
1975 the other exceptions for charities in existing anti-discrimination
legislation, and are therefore compatible with EC law. We have
considered whether Article 8 read together with Article 14 could
be engaged by this provision. A small number of Catholic adoption
agencies offering publicly-funded services sought to change their
charitable objects so that they may place children with heterosexual
couples or single people only. Such a restriction would amount
to an interference with the Article 8 (read with Article
14) rights of same-sex couples to respect for their family life
without discrimination on grounds of sexual orientation (Frette
v France (2004) 38 EHRR 21), and the Charity Commission
has therefore declined the agencies permission to change their
objects. This example shows that attempts to escape the ambit
of discrimination law by altering a charity's instrument are unlikely
to succeed and that the exception is narrow enough to be proportionate
to its aim of protecting existing charitable work.
300. Subsection (4) corresponds to part
of section 34(1) of the RRA 1976, which was applied by the High
Court in the case of Gibbs v Harding [2007] EWHC 3 (Ch).
It provides that a provision in a charitable instrument which
confers benefits on a class of persons defined by reference to
colour will take effect as if the reference to colour was disregarded
or, if that is not possible, as if it provided for conferring
the same benefits on people generally.
301. Subsections (5) and (6) ensure that
organisations such as the Scouts or Guides can retain a requirement
for their members to assert a belief in God. These provisions,
which reproduce section 60 of the Equality Act 2006, are
compatible with Article 9 of the Convention.
302. Clause 189 contains exceptions
for sport. Subsections (1) and (3), which reproduce section 44(1)
of the SDA 1975, make it lawful to confine participation in any
competitive sport, game or other activity to competitors of one
sex where the physical strength, stamina or physique of the average
woman or man would put her or him at a disadvantage compared to
the average man or woman. Subsection (2), which reproduces section
44(2) of the SDA 1975 and overlaps with section 19 of
the Gender Recognition Act 2004, makes it lawful to discriminate
in relation to the participation of a transsexual person as a
competitor in an activity to which subsection (1) applies if this
is necessary to secure fair competition or the safety of competitors.
303. Subsections (4) and (5), which reproduce
section 39 of the RRA 1976, makes it lawful to select people
on the basis of nationality, place of birth or length of residence
to represent a country, place or area, or a related association,
in any sport or game. It also excuses discrimination on that basis
in pursuance of the rules of a competition which relate to eligibility
to compete in any sport or game.
304. These exceptions could engage Article
8 if an individual's right to right to respect for his or
her private life extends to establishing or developing relationships
with others by participating in competitive sporting activities.
But we think that an interference with any such right would be
in accordance with the law and necessary in a democratic society
for the protection of the rights and freedoms of others, including
fellow competitors.
305. Schedule 22 sets out exceptions
for statutory authority. Paragraph 1 excuses conduct made
unlawful by specified provisions of the Bill which must be done
pursuant to particular statutory requirements. It simplifies and
harmonises the exceptions for statutory authority in existing
anti-discrimination legislation. We consider that this exception
is compatible with Convention rights which are subject to exceptions.
For example, age limits required by legislation are in accordance
with or prescribed by law and necessary in a democratic society
in the interests of public safety or for the protection of the
rights and freedoms of others.
306. Paragraph 2 excuses unlawful conduct
in a work context in relation to a woman which is necessary to
comply with legislation protecting women who are pregnant, who
have given birth or in any other circumstances giving rise to
risks specifically affecting women. This exception reproduces
section 51 of the SDA 1975 and section 4 of the
Employment Act 1989. We consider that it is compatible with Article
8 so far as relating to family life.
307. Paragraph 3 makes it lawful to
discriminate on grounds of sex in connection with certain educational
appointments. This exception reproduces section 5 of the
Employment Act 1989.
308. Paragraph 4 saves section 124A
of the School Standards and Framework Act 1998, which enables
an independent school with a religious character to give preference,
in connection with the appointment, promotion or remuneration
of teachers at the school, to teachers whose religious opinions
are in accordance with the tenets of the religion or religious
denomination on which the school is based. Further, in terminating
a teacher's employment, the school may have regard to conduct
which is incompatible with its religious character. This saving
carries forward part of the effect of regulation 39 of the
Employment Equality (Religion or Belief) Regulations 2003. The
other provisions saved by that regulation fall within paragraph
1 above.
309. Paragraphs 3 and 4 could
engage an individual's Article 8 rights (read together with
Article 14). However, we consider that the exceptions are narrow
enough to be a proportionate means of achieving the legitimate
aim of preserving the character of religious schools and single-sex
schools and that they fall within article 8(2) because they protect
the rights and the freedom of others to be educated at that type
of school.
310. Schedule 23 sets out general exceptions
to the provisions in the Bill and is considered at paragraphs
129-140 above.
8 (1986) 8 E.H.R.R. 235 Back
9
(1981) 4 E.H.R.R. 149 Back
10
[2007] UKHL 52 Back
11
Rees -v- UK (1986) Series A No. 106 Back
12
1989, Series A, No. 160 Back
13
1993 Series A, No.247-C Back
14
15 February 2001, ECHR 2001-V Back
15
18 December 1996 R.J.D. 1996-VI, No. 4 Back
16
Phull -v- France 11 January 2005, ECHR 2005-I Back
17
14 December 1999 ECHR 1999-IX Back
18
97 members of the Gldani Congregation of Jehovah's Witnesses
-v- Georgia 3 May 2007, para 129 Back
19
Le Compte, van Leuven and de Meyere -v- Belgium (1982) 4 EHRR
1 Back
20
26 EHRR 121 Back
21
22 EHRR 409 Back
22
1 EHRR 252 Back
23
Magee -v- UK 6 June 2000, ECHR 2000-VI Back
24
13 EHRR 774 Back
25
29EHRR 493 Back
26
27 March 1998, RJD, 1998 II Back
27
Sporrong and Lonnroth -v- Sweden 5 EHRR 35 Back
28
29 EHRR 615 Back
29
21 EHRR 481 Back
30
2000/43/EC, 2000/78/EC, 2002/73/EC and 2004/113/EC Back
31
(1998) 27 EHRR CD 275 Back
32
Case C-13/94, [1996] ECR I-2143 Back
33
(2002) 35 E.H.R.R. 23 Back
34
See for example Article 2(3) of the Race Directive Back
35
[2008] All ER (D) 219 Back
36
The exceptions in Schedule 23 apply in addition to other
fields covered by the Bill. Back
37
(1983) 5 EHRR 35 Back
38
(1998) 26 EHRR 241 Back
39
(1979-80) 1 EHRR 252 Back
40
(App No. 35748/05) Back
41
[2007] NIQB 66 Back
42
2000/31/EC Back
43
See: Novoseletskiy v Ukraine (Judgment of 22 February 2005),
Selcuk & Asker v Turkey (Judgment of 24 April 1998) Back
44
Ovey, C. & White, R. Jacobs and White: The European Convention
on Human Rights 2006, Oxford: OUP (Fourth Edition), at 232. Back
45
Ibid. at 233. Back
46
See Marckx v Belgium, (Judgment of 13 June 1979) at paragraph
63. Back
47
Broniowoski v Poland (Grand Chamber judgment of 22 June 2004)
at paragraph 149. Back
48
Royal Society for the Prevention of Cruelty to Animals v A-G [2002]
1 WLR 448 (RSPCA entitled to adopt membership policy
which excluded individuals advocating change to its position in
opposition to hunting with dogs). Back
49
Id. Back
50
Appleby v United Kingdom [2003] AER(D) 39 (state did not
have a duty to ensure access by campaign group to private property). Back
51
The prohibition of discrimination against and victimisation and
harassment of public office-holders and local authority members
is not required by EC law. Back
52
Ensslin, Baader and Raspe v Federal Republic of Germany 14 DR
64 (1978), EComHR. Back
53
X and Y v Federal Republic of Germany 42 CD 139 (1972),
EComHR (permissible to exclude lawyer for refusing to wear robes);
Ensslin, Baader and Raspe (permissible to limit the number of
defence lawyers and exclude lawyer where serious presumption of
abuse of contact with accused or justified grounds for fearing
counsel is a threat to security of the state). Back
54
(1992) 16 E.H.R.R. 135 Back
55
[2004] IRLR 124 Back
56
[2004] IRLR 430 Back
57
(2000) 29 EHRR 493 Back
58
Application no. 11002/05; decision 27.2.2007 Back
59
Ibid §39. Back
60
Application no. 11002/05; decision 27.2.2007 Back
61
(1975) EHRR 524 Back
62
(1996) 23 EHRR 213 Back
63
Accrued contractual rights are "possessions", eg, the
right to be paid for work done. But Article 1/1 "applies
only to a person's existing possessions: it does not guarantee
a right to acquire possessions": see R (Carson and Reynolds)
v Secretary of State for Work and Pensions [2003] EWCA 797. Back
64
(1986) 8 EHRR 123; see also Broniowoski v Poland (Grand Chamber
judgment of 22 June 2004) at para. 149 (the "notion
of 'public interest' is necessarily extensive…the margin
of appreciation available to the legislature in implementing social
and economic policies should be a wide one…[The Strasbourg
court] will respect the legislature's judgments as to what is
'in the public interest' unless that judgment is manifestly without
reasonable foundation"). Back
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