Letter to Vera Baird QC, Solicitor General,
from the Chairman, dated 2 June 2009
EQUALITY BILL
Thank you for your human rights memorandum to
the Joint Committee on Human Rights dated 5 May 2009. As
you are aware, we are considering the human rights compatibility
of the Equality Bill. Having carried out an initial examination
of the Bill, we would be grateful if you could provide answers
to the following questions concerning the human rights compatibility
of some of the Bill's provisions, and some missed opportunities
to implement human rights obligations. The Committee may have
further questions in due course, should the Government bring forward
amendments to the Bill.
PART 1—SOCIO-ECONOMIC INEQUALITIES
The Bill creates a new duty on certain listed
public sector bodies, when making strategic decisions, "to
have due regard to the desirability of exercising them in a way
that is designed to reduce the inequalities of outcome which result
from socio-economic disadvantage".[65]
1. Please explain how, in practice, the proposed
new duty will enhance human rights for individuals.
Socio-economic inequalities experienced as a
result of being subject to immigration control are specifically
excluded from the duty in Clause 1.
2. Please explain why immigration measures
are exempt from the socio-economic duty.
PART 2—EQUALITY: KEY CONCEPTS
Part 2 of the Bill defines key concepts
such as "gender", "race", "direct discrimination"
and "harassment", which are used in subsequent Parts
of the Bill to establish what forms of conduct are prohibited
in specific areas of social activity.
Protected Characteristics
Chapter 1 of this Part sets out the "protected
characteristics", ie the aspects of an individual's identity
that are protected by the subsequent provisions of the Bill. Clause
7 changes the definition of "gender reassignment".
3. Will the definition of the protected characteristic
of "gender reassignment" in clause 7 exclude individuals
with a transsexual identity from protection against discrimination
where such individuals have as yet not embarked upon the initial
stages of the medical process of reassigning gender, or manifested
a clear intention to undergo such a process, or who may not be
currently proposing to undergo any medically supervised process
of gender reassignment?
The Definition of Disability
Chapter 1 together with Schedule 1 to
the Bill does not alter the definition of disability, which has
attracted criticism for adopting a "medical model" of
disability (ie it focuses on whether an individual has a medically
classifiable disability rather than whether a person is treated
as disabled by employers, service providers and others, which
is described as the "social" model of disability). We
have recently reported on the UN Convention on the Rights of Persons
with Disabilities, which adopts a social model of disability.[66]
4. Did the Government consider defining disability
according to a social rather than medical model, which would be
in line with what is increasingly recognised as international
best practice? If so, why was this model rejected?
Marriage/Civil Partnership
Clause 8 provides that a person has the
protected characteristic of marriage and civil partnership only
if she or he is actually married or in a civil partnership. As
a result, the Bill appears not to protect people who are in, or
have been in, significant relationships aside from marriage and
civil partnership and suffer discrimination or harassment as a
result. Nor does the legislation appear to cover people who are
discriminated against or harassed by reason of not being in a
marriage or civil partnership. In addition, discrimination in
work on the basis of association with married persons or those
in a partnership, or on the basis of perceived marital or partnership
status, does not appear to be prohibited (Clause 13(4)). The Bill
also contains a large number of provisions which exclude married
people from protection (including Clauses 24, 26(1)(b), 30, 79(b),
85, 90 and Part 7).
5. Why has protection against discrimination,
harassment and victimisation on the protected characteristic of
marriage or civil partnership been restricted in the definition
of harassment, in the provision of goods and services and the
exercise of public functions, in the provision of education, in
the disposal, management and occupation of premises, and in the
treatment by associations of members, associates and guests?
6. Why is protection against discrimination,
harassment and victimisation under the Bill limited to individuals
who are married or in a civil partnership, and not extended to
those who face discrimination and harassment on the grounds that
they are not in such relationships?
Other Protected Characteristics
Legislation in Northern Ireland prohibits discrimination
based on political opinion: legislation in some other Commonwealth
and European states protects individuals against discrimination
based on characteristics such as genetic predisposition, spent
criminal convictions, or on socio-economic status, or on caste
status. The Bill does not cover these forms of discrimination.
7. Did the Government consider extending protection
against discrimination to cover discrimination based on characteristics
such as genetic predisposition, spent criminal convictions, socio-economic
status, political opinion or caste? If so, why did it reject their
inclusion?
Harassment
Chapter 2 of Part 2 sets out standardised
and clarified definitions of different forms of discriminatory
conduct and provides subsequently for these standardised definitions
to be applied in general across all the areas of social activity
covered by the Bill in respect of all the protected characteristics.
However, a standard approach is not adopted in respect of every
protected characteristic and certain characteristics are not uniformly
prohibited.
8. Why is harassment related to marriage or
civil partnership, or pregnancy/maternity not prohibited?
9. Why is less favourable treatment because
of submitting or failing to submit to harassment related to a
protected characteristic not prohibited, with the exception of
harassment related to sex or gender reassignment?
10. Did the Government consider making provision
for an alternative and narrower definition of harassment to be
applied in certain circumstances in order to ensure adequate protection
for freedom of expression? In particular, was consideration given
to whether a narrower definition of harassment could have been
applied in the context of the provision of services and the performance
of public functions in relation to the protected characteristics
of religion or belief or sexual orientation? (This question is
linked to questions 30 and 35 below, and you may wish
to answer them together.)
Discrimination Related to Disability
The Bill attempts to respond to the consequences
of the House of Lords judgment in London Borough of Lewisham
v Malcolm, which made it more difficult to establish
the existence of less favourable treatment related to disability.[67]
The Explanatory Notes state that Clause 14 was intended to
strike a suitable balance between the equality rights of persons
with disabilities and the needs of employers, following the impact
of the Malcolm decision. However, the wording of Clause
14 does not reproduce the protection against disability-related
discrimination that is currently provided by the DDA. It would
appear not to cover a situation where an individual was subject
to a form of disadvantage which would be a detriment to any person.
By prohibiting "discrimination arising from disability"
in Clause 14 and indirect disability discrimination in Clause
18, the Bill appears to be attempting to substitute these two
new forms of discrimination for the prohibition on disability-related
discrimination contained in the DDA.
11. Does the Government consider that the
prohibition on "discrimination arising from disability"
in Clause 14 taken together with the prohibition on indirect
disability discrimination introduced by Clause 18 constitutes
a sufficient substitute for the prohibition on "disability-related
discrimination" contained in s. 3A of the Disability Discrimination
Act 1995?
12. Will the removal of protection against
"disability-related discrimination" constitute a reduction
in the level of protection against discrimination enjoyed by persons
with disabilities and therefore violate the "non-retrogression
principle" set out in Article 8(2) of Directive 78/2000/EC
(the "Framework Equality Directive")?
Discrimination Against Carers
The standard definition of direct discrimination
set out in Clause 13 states that "person (A) discriminates
against another (B) if, because of a protected characteristic,
A treats B less favourably than A treats or would treat others".
The Explanatory Notes state that this definition is broad enough
to cover cases where the less favourable treatment is because
of the victim's association with someone who has that characteristic
or because the victim is wrongly thought to have it. In the recent
case of Coleman v Attridge Law, the European Court of Justice
interpreted the Framework Equality Directive 2000/78/EC as requiring
the prohibition of direct discrimination based on association
with a person with a disability. Harriet Harman MP suggested that
this would ensure greater protection for individuals with caring
responsibilities and those that are seen to look "too old"
or "too young".[68]
However, Clause 13 does not expressly prohibit discrimination
based on association or perception: instead, it just prohibits
discrimination "because of" a protected characteristic.
13. Is the definition of direct discrimination
in Clause 13 sufficiently clear to ensure compliance with
the decision of the European Court of Justice in C-303/06, Coleman
v Attridge Law?
14. Why is discrimination on the basis of
association and perception not explicitly prohibited on the face
of the Bill, in order to provide greater clarity for employers
and service providers?
15. Was consideration given to including carer
status as a protected characteristic, or to giving carers a legal
right to seek reasonable accommodation? If so, why was it rejected?
Multiple discrimination
In its consultation paper on the Bill, the Government
states that, "having examined the evidence available",
it proposes to protect from multiple discrimination in relation
to two protected characteristics.[69]
The consultation paper also indicates that the Government does
not intend to prohibit indirect discrimination or harassment in
how it will define unlawful multiple discrimination.
16. Does the Government accept that if multiple
discrimination is confined to two protected characteristics, some
individuals subject to other forms of multiple discrimination
may be denied legal protection against unfair and unequal treatment?
17. Why does the Government consider that
it is unnecessary to prohibit indirect discrimination or harassment
which is based on multiple grounds?
18. Why was it not possible to complete the
consultation in time for the Government's proposed option to be
included in the Bill at the outset?
PART 3—SERVICES AND PUBLIC FUNCTIONS
Service Provision and the Performance of Public Functions
This Part of the Bill prohibits discrimination,
harassment and victimisation by people who supply services (which
include goods and facilities) or perform public functions. It
sets out, in Part 1 of Schedule 3, a list of bodies and functions
to which the duty in Clause 27 on a service provider not
to discriminate does not apply.
19. Does the Government consider the exceptions
listed in Part 1 of Schedule 3 to be necessary and proportionate?
If so, why?
A Constitutional Equality Clause?
Discrimination legislation is given no special
status by the Bill: other legislation may override its provisions
or carve out exceptions to its scope (see Part 1 of Schedule
3 and paragraphs 1 of Schedules 22 and 23). In
our Report on a Bill of Rights, we stated that the UK's statutory
anti-discrimination laws are sufficiently established to be regarded
as the foundation, along with the common law's regard for equality,
for a general free-standing right. In its Green Paper on a Bill
of Rights and Responsibilities, the Government noted its aim to
"set out in any Bill of Rights and Responsibilities an accessible
and straightforward statement of equality to embody its central
place in UK society" and sought views on how a statement
of equality might be framed.[70]
20. Was consideration given to including in
the Equality Bill a provision which confers an equivalent level
of constitutional protection on the "free-standing"
right to equality and non-discrimination as is conferred on the
rights contained in the ECHR by the Human Rights Act 1998? If
so, what were the Government's reasons for not wishing to recognise
the constitutional status of the right to equality?
The Immigration Exceptions
Part 4 of Schedule 3 makes provision
for exemptions in the field of immigration in relation to disability,
religion or belief and nationality and ethnic origin. In our Report
on the UN Convention on the Rights of Persons with Disabilities,
we drew attention to the Government's proposed reservation on
immigration control and recommended that it was unnecessary, inconsistent
with the object and purpose of the Convention and did not constitute
a valid reservation.[71]
21. Does the Government consider each of the
exceptions in Part 4 of Schedule 3 to be necessary and
proportionate, and if so, on what basis?
22. Please provide the evidence which, in
the Government's view, justifies the inclusion within the legislation
of a power which would permit the exclusion of people with tuberculosis
in certain circumstances? (See paragraph 668 Explanatory
Notes)
Age Discrimination in the Provision of Services
The key change to existing discrimination legislation
in this area is that Clause 26 of the Bill extends protection
against age discrimination to the provision of services and the
performance of public functions, which we welcome.
However, much of the substance of how this provision
will operate in practice, including the exceptions, will be contained
in delegated legislation. Clause 190 confers wide-ranging
powers on Ministers to make orders setting out exceptions to the
prohibition on discriminating against people outside the workplace
because of age if they are over 18.
23. What exceptions are intended to be introduced
in respect of age discrimination outside the workplace?
24. Why does the Government believe that it
is appropriate to leave this matter to secondary legislation and
what is the proposed timetable for implementation?
Protection against age discrimination is not
provided for those under the age of 18. The government has justified
this exclusion on the basis that it will often be legitimate to
treat children (ie under-18s) differently in the provision of
services and the performance of public functions. However, this
could be contested on the basis that treating persons differently
on the grounds of their age is capable of objective justification.
25. Why are children excluded from discrimination
on the grounds of age in the provision of services and the performance
of public functions?
26. Does the Government consider that this
may prevent children from enjoying full protection of the rights
set out in the UN Convention on the Rights of the Child? If not,
why not?
The Exclusion of Harassment on the Grounds of Religion
or Belief or Sexual Orientation
Clause 24 re-enacts existing legislation,
which means that the Bill does not make explicit provision for
individuals to be protected against harassment related to religion
or belief or sexual orientation in either the provision of services
or the exercise of public functions. Some protection against harassment
nevertheless exists as a result of the general prohibition against
direct and indirect discrimination on the grounds of religion
or belief or sexual orientation, which may make certain types
of harassment unlawful when they can be classed as constituting
direct or indirect discrimination. However, the lack of an explicit
prohibition on harassment related to religion or belief or sexual
orientation in these areas continues to generate concern. It also
could be seen as undermining legal certainty, on the basis that
service providers and public authorities may be left without a
clear definition of when conduct will amount to harassment.
27. Why does the Government consider it unnecessary
to make provision for the explicit prohibition of harassment on
the grounds of religion or belief or sexual orientation in the
fields of service provision and the performance of public functions,[72]
and in particular why was it not considered necessary to prohibit
harassment related to these characteristics in the provision of
public services?
28. Is the absence of protection against harassment
related to these characteristics compatible with the right of
individuals under Article 14 of the European Convention on
Human Rights to enjoy the rights and freedoms set out in the Convention
without discrimination?
29. To what extent does the Government consider
that acts of harassment related to the protected characteristics
of religion or belief or sexual orientation in the provision of
services or the exercise of public functions are prohibited by
the ban on direct and indirect discrimination linked to these
characteristics, even in the absence of an explicit prohibition
of harassment?
30. Has the Government considered introducing
an alternative definition of harassment on the grounds of religion
or belief or sexual orientation in the fields of service provision
and the performance of public functions which might have a narrower
scope than the standard definition of harassment set out in Clause
24 of the Bill? In particular, has the Government considered
the possibility of removing any reference to the creation of an
offensive environment from the definition of prohibited "harassing"
conduct in this context, and/or requiring any such conduct to
both violate the dignity of a person and create an intimidating
or hostile environment? If so, why was this alternative approach
rejected? (This question is linked to question 10 above,
and you may wish to respond to these questions together.)
PART 4—PREMISES
Part 4 prohibits discrimination, harassment
and victimisation in relation to the disposal, management and
occupation of premises. However, certain exceptions are made to
this general prohibition. Clause 30 provides that discrimination
on the basis of marriage/partnership and age in this area is not
prohibited. This would appear to be so as to allow those letting
or disposing of property to differentiate between different age
groups and between single persons and those in marriages or civil
partnerships.
31. Why is it considered necessary to exclude
all forms of protection against discrimination on the grounds
of marriage/partnership and age in relation to the disposal, management
and occupation of premises?
Part 4 and Schedule 4 to the Bill
extend the obligation on landlords to make reasonable accommodation
to include common spaces. However, the House of Commons Work and
Pensions Committee has called for the imposition of a general
"anticipatory" duty upon landlords to make reasonable
accommodation for persons with disabilities in the disposal, management
and occupation of premises.[73]
32. Has the Government considered introducing
a general anticipatory duty on landlords to make reasonable accommodation
for persons with disabilities in the disposal, management and
occupation of premises, and if so, why was this rejected?
PART 5—WORK
Part 5 prohibits discrimination, harassment
and victimisation in the field of employment, occupation and appointment
to public bodies. Courts and employment tribunals have recently
in a series of important cases considered the interplay between
public sector employees' right to freedom of religion (Article
9 ECHR), their contractual duties and their duties not to
discriminate.[74]
For example, in Chondol v Liverpool City Council, the Employment
Appeal Tribunal held that an employer was entitled to take action
to prevent employees from proselytising in the course of their
work, and that the disciplinary action taken in this case did
not constitute discrimination on the grounds of religion or belief.
33. Has the Government considered inserting
legislative provisions in the Bill which would give clear statutory
expression to the approaches adopted by the courts and tribunals
in cases concerning religion or belief and the non-discrimination
duties of public and private employers (such as Chondol and Eweida
v British Airways Plc[75]),
provide legal clarity for employers and employees and avoid litigation?
If so, why has it rejected this approach?
34. Is the Government aware of cases where
employees have been accused of harassment of another employee
on grounds of religion or belief or sexual orientation merely
by expressing their view in a conversation of the morality of
homosexuality or of the truth of a religion?
35. Has the Government given consideration
as to whether the adoption of a narrower definition of harassment
related to the characteristics of religion or belief or sexual
orientation which continued to conform to the requirements of
EU law (such as a definition of harassment which prohibited unwanted
conduct that had the purpose or effect of both violating the individual's
dignity and creating a degrading, humiliating or offensive environment)
would ensure greater protection for freedom of expression? (This
question is linked to question 10 above, and you may wish
to answer them together.)
Occupational requirements
Schedule 9 re-enacts and attempts to clarify
existing legislation in respect of genuine occupational requirements.
Where employment is for the purposes of an organised religion,
Paragraph 2 of Schedule 9 makes provision for an additional
form of occupational exception. Another wider exception is set
out in Paragraph 3 of Schedule 9 which allows an employer
with an ethos based on religion or belief to discriminate in relation
to work by applying a requirement to be of a particular religion
or belief, but only if, having regard to that ethos, being of
that religion or belief is a genuine requirement for the work
and applying the requirement is proportionate so as to achieve
a legitimate aim.
36. Why does the Government not consider it
to be necessary, in defining the scope of the occupational requirement
exceptions set out in Part 1 of Schedule 9, to require in
express terms that any such occupational requirements must be
"genuine" in nature?
37. Does the Government consider that the
provisions of Paragraph 3 of Schedule 9 will permit
employers in certain circumstances to make adherence by employees
to religious doctrine in their lifestyles and personal relationships
a genuine occupational requirement for a particular post? Is the
position different if a religious organisation is wholly or mainly
delivering public functions?
38. Why is it justified to give employers
greater scope through the provisions of Paragraph 3 of Schedule
9 to impose requirements upon employees to be of a particular
religion or belief than to be of a particular sexual orientation?
Military exemption
In its Report on the reservations and declarations
to the UN Convention on the Rights of Persons with Disabilities,
the Committee noted the Government's proposed reservation in respect
of service in the armed forces. The Committee concluded that the
Government should consider removing the existing exemption for
service in the armed forces from the Disability Discrimination
Act 1995 in the Equality Bill and stressed that evidence
should be provided to support any justification provided by the
Ministry of Defence that the existing exemption is necessary.
It concluded that if the Government decided to lodge the reservation,
it should commit to keeping the reservation under review and undertake
to reconsider the necessity for the reservation within 6 months
of the Equality Bill being granted Royal Assent.[76]
On 13 May 2009, the Minister Jonathan Shaw MP, announced
that the Government proposed to ratify the Convention on 8 June
2009, with the substance of the reservation remaining the same.[77]
39. What evidence does the Government rely
on to demonstrate the necessity for maintaining the existing exemption?
Does the Government intend to follow the Committee's recommendation
to reconsider the necessity for this reservation within 6 months
of Royal Assent being granted to the Equality Bill?
PART 6—EDUCATION
Part 6 makes it unlawful for education
bodies to discriminate against, harass or victimise a school pupil
or student or applicant for a place.
The scope of protection
The Bill prohibits discrimination, harassment
and victimisation in the field of education in schools. However,
the education provisions do not apply to discrimination, harassment
or victimisation on grounds of pregnancy and maternity, age, or
marriage and civil partnership.[78]
40. Why is it justifiable to exclude discrimination
on grounds of (1) pregnancy and maternity (2) age and (3) marriage
and civil partnership from the scope of the Bill's protections
in the field of education?
School Admissions
The Bill makes it unlawful for the responsible
body of a school to discriminate against a person in its admission
arrangements, in the terms on which it offers to admit the person
as a pupil, or by not admitting them.[79]
However, the Bill also provides for some exceptions to the prohibition
on discrimination on grounds of religion or belief, allowing schools
which have a religious character or ethos ("faith schools")
to discriminate on grounds of religion or belief in relation to
admissions.[80]
The Bill also provides an exception from the prohibition on religious
or belief-related discrimination in the provision of services[81]
in relation to anything done in connection with admission to a
school which has a religious ethos.[82]
The Government argues that an exemption from the prohibition on
religious discrimination in school admissions is necessary in
order to maintain the distinctiveness of religious schools and
so maintain the "plurality of provision" which, it maintains,
is desirable.
41. On what evidence does the Government rely
in support of its view that the desired plurality of provision
is, on balance, a public good? What evidence has the Government
considered which suggests that permitting religious discrimination
in school admissions has public policy detriments, such as religious,
racial and social segregation, and what is its view of such evidence?
42. On what evidence does the Government rely
to demonstrate that religious discrimination in admissions is
necessary in order to preserve a schools' distinctive religious
ethos and therefore to preserve the plurality of provision?
43. Does the Government's "plurality
of provision" justification for the faith school exemption
carry more weight in relation to minority faith schools such as
Jewish, Muslim or Catholic schools than in relation to Church
of England faith schools?
44. Why does the Government consider it to
be unnecessary to make provision for the explicit prohibition
of harassment on the grounds of religion or belief or sexual orientation
or gender reassignment in education (see Clause 80(10))?
45. In light of the decision in the Jewish
Free School case, is it the Government's intention that schools
should have the ability to define their own religion for the purposes
of discrimination law?
Curriculum
The Bill provides that the responsible body
of a school must not discriminate against a pupil in the way it
provides education for the pupil.[83]
However, it also provides that none of the prohibitions apply
to anything done in any school in connection with the content
of the curriculum.[84]
The Bill also provides an exemption from the prohibition on religious
or belief-related discrimination in the provision of services
in relation to anything done in connection with the curriculum
of a school.[85]
The current law already provides an exemption for the content
of the curriculum from the prohibition on discrimination on grounds
of religion or belief, in the Equality Act 2006. The new curriculum
exemption is much wider, however, because it extends the exemption
to other protected characteristics. In our Report on the Sexual
Orientation Regulations, we considered that the prohibition on
sexual orientation discrimination should clearly apply to the
content of the curriculum. We were concerned that this was not
clear from the regulations themselves and by the risk that, if
the prohibition on discrimination did not apply to the curriculum,
homosexual pupils would be subjected to teaching, as part of the
religious education or other curriculum, that their sexual orientation
is sinful or morally wrong.[86]
In our view, the risk of the exemption for the content of the
curriculum leading to unjustifiable discrimination is even greater
under the broader exemption contained in the Bill.
46. Is it possible to make a meaningful distinction
in practice between the content of the curriculum, the content
of course materials and the way in which the curriculum is taught?
47. Why does the Government consider that
such a wide exemption for the content of the curriculum, covering
all schools and all strands, is necessary in order for religious
schools to maintain their distinctive ethos?
48. Please explain why the Committee's preferred
approach in our Report on the Sexual Orientation Regulations should
not be followed.
Collective worship
The Bill disapplies the prohibition on religious
discrimination from anything done in relation to acts of worship
or other religious observance organised by or on behalf of a school,
whether or not it is part of the curriculum.[87]
The exemption applies to any school, not just faith schools. The
purpose of the exemption, according to the Explanatory Notes,
is to avoid any conflict with the existing legislative framework
in respect of religious worship.[88]
49. How is maintaining the legal requirement
that collective worship in schools must be of a broadly Christian
character consistent with the Government's commitment to "a
plurality of provision" and is this justifiable in view of
the religious diversity of the UK today?
50. Please provide a more detailed explanation
of why collective worship should continue to be exempt from the
duty not to discriminate on grounds of religion or belief?
51. Are local Standing Advisory Councils for
Religious Education permitted to discriminate on religious grounds
in their appointments?
We have consistently recommended that children
of sufficient age and maturity should have the right to withdraw
from collective worship. When we have raised this in previous
Bills, the Government has opposed it on the basis that such a
provision would be too administratively burdensome because it
would require schools to make a judgment in relation to each child
who sought to withdraw. However, the human rights memorandum to
this Bill recognises that administrative difficulties would not
normally suffice as a justification for differential treatment.[89]
The UN Special Rapporteur on freedom of religion or belief, in
her 2008 report on the UK welcomed the extension of the right
to opt-out from collective worship to sixth-formers and recommended
that children's views should be given due weight in accordance
with their age and maturity (Article 12 UNCRC).
52. Why are children who are not in the sixth
form, but are of sufficient age and maturity, not permitted to
withdraw themselves from (1) collective worship and (2) religious
education classes, in light of the Government's acceptance that
administrative difficulties cannot justify differences of treatment
in the enjoyment of Convention rights, and the UN Special Rapporteur's
recent recommendation?
School transport
Under the current law, the provision of free
or subsidised home to school transport by local authorities is
exempted from the duty not to discriminate on grounds of religion
or belief.[90]
This is continued in the Bill.[91]
In previous Reports, we have emphasised the need for guidance
to clarify the duty under the Human Rights Act to make equal provision
for school transport for those with both religious and non-religious
beliefs. Both the Guidance for Schools on Part 2 of the Equality
Act and the recent School Transport Guidance now make this clear.
However, the question remains whether the continued existence
of the exemptions will encourage authorities to treat the religious
and the non-religious differently.
53. Given the clarity of the legal position,
as correctly reflected in the Guidance, does the Government consider
the continued exemption for the provision of school transport
to be justified, and if so why?
Employment in religious schools
The Bill exempts from the prohibition on religious
discrimination in employment, discrimination related to employment
in faith schools which is permitted by the School Standards and
Framework Act 1998.[92]
The Explanatory Notes explain that this means, for example, that
schools with a religious ethos can restrict employment of certain
teachers to applicants that share the same faith.[93]
Elsewhere in the Bill, however, an employer with an ethos based
on religion or belief is allowed to discriminate in relation to
work by applying a requirement to be of a particular religion
or belief, but only if, having regard to that ethos, being of
that religion or belief is a requirement for the work and applying
the requirement is proportionate to achieve a legitimate aim.[94]
54. Why is a specific exemption for employment
in faith schools necessary in light of the Bill's provision for
genuine and proportionate occupational requirements relating to
religion or belief?
55. Why does the Government consider the exemption
to comply with Articles 9 and 14 ECHR?
PART 8—PROHIBITED CONDUCT: ANCILLARY
The European Court of Justice in Case C-54/07 Firma
Feryn established that discriminatory statements or discriminatory
job vacancy announcements must be capable of constituting direct
discrimination in national law. Paragraph 13 of Schedule
26 partially responds to this by extending the power of the
Equality and Human Rights Commission to bring enforcement proceedings
in respect of discriminatory advertisements and practices. Other
provisions of the Bill may confer standing on individuals to bring
actions where they have suffered a detriment as a result of discriminatory
advertising or statements.
56. Does the Government consider that the
provisions of the Bill will ensure that British discrimination
law fully complies with the ECJ decision in C-54/07, Firma Feryn?
PART 9—ENFORCEMENT
This Part covers how and where to bring proceedings
under the Bill. Clause 111 provides a rule making power for
the Civil Procedure Rule (CPR) Committee in relation to national
security cases. Under these rules, the CPR Committee may empower
courts to exclude claimants, their representatives or assessors
from all or part of the proceedings and/or keep secret all or
part of a court's reasons for its decision where "the court
thinks it is expedient to do so in the interests of national security".
57. What safeguards will be in place to ensure
that those who are excluded from proceedings or not provided with
reasons have access to a court and to a fair hearing (Article
6 ECHR)?
Tribunals are given a wider power to make recommendations
(Clause 118), although there is no sanction for non-compliance
(Clause 118(7)). However, they may not make recommendations in
national security proceedings relating to certain bodies (Clause
119) (ie the Security Service, the Secret Intelligence Service,
GCHQ, or the armed forces when assisting GCHQ).
58. Please explain the justification for excluding
certain bodies from this enhanced power of Tribunals to make recommendations.
59. Why will the extended powers to make recommendations
not be applied to equal pay cases?
The Bill does not make provision for representative
actions. The Government is currently considering reform of standing
requirements are part of a wider review of civil justice rules.
60. Does the Government consider that the
"group" nature of many discrimination claims make it
appropriate for the Bill to provide for the possibility of representative
actions to be brought on behalf of claimants who allege that they
have been subject to discrimination? If not, why not?
PART 11—ADVANCEMENT OF EQUALITY
Public sector equality duty
Clause 143 creates a single public sector
equality duty. The second and third limbs of the duty do not apply
to the protected characteristic of marriage and civil partnership.
Schedule 18 sets out further exceptions to the duty (including
age and immigration) and lists bodies which will not be classified
as public authorities for the purposes of Clause 143 when
performing certain listed functions, and who will not therefore
be required to comply with the public sector equality duty in
relation to those functions.
61. Please explain why each exception to the
public sector equality duty is necessary and proportionate.
Whether Academies are considered by the courts
to be public authorities for the purposes of the Human Rights
Act 1998 has still not been definitively decided by judicial
decision and remains a live issue in litigation and it is therefore
not clear whether they would be caught by the public sector equality
duty.
62. Will academies be considered to be public
authorities for the purposes of the Equality Bill?
63. Has the Government given consideration
as to how the ability of religious organisations to discriminate
on the basis of religion or belief in the provision of public
services (as provided for in Paragraph 2 of Schedule 23)
is compatible with the obligations to promote equality of opportunity
imposed on public authorities by virtue of Clause 143?
64. Has the Government given consideration
as to how the provisions of Clause 143(1)(b) taken together with
Clause 143(3)(b) will affect the relationship between public authorities
and religious groups? Was consideration also given to the possibility
of not applying either Clause 143(1)(b) and/or Clause 143(3)(b)
to the protected characteristic of religion or belief?
Clause 149 (together with Clauses 147 and
148) deal with procurement.
65. How does the Government propose to ensure
that public authorities incorporate equal opportunities considerations
into their procurement criteria? Does the existing legislative
framework which regulates public procurement allow public authorities
to give due weight to equality opportunities considerations in
awarding procurement contracts?
Positive Action Measures
Clause 152 provides that the Bill does
not prohibit the use of proportionate positive action measures
to alleviate disadvantage experienced by people who share a protected
characteristic, reduce their under-representation in relation
to particular activities, or to meet their particular needs. Clause
153 permits an employer to take a protected characteristic
into consideration when deciding who to recruit or promote, where
people having the protected characteristic are at a disadvantage
or are under-represented. According to the Explanatory Notes,
Clauses 152 and 153 extend the permissible scope of
positive action "to the extent permitted by European law".
However, the restrictions imposed in Clause 153 on the use
of positive action by employers may impose stricter requirements
than European law, and do so in an unclear manner.
66. Does the wording of Clause 153(4) fully
reflect the scope for positive action permitted by EU law? If
not, why not?
67. Has the Government considered whether
the provisions of Clause 153(4)(b) as currently worded may prevent
any employer from adopting a general positive action strategy
prior to making any recruitment decisions? Might the wording of
Clause 153(4)(b) have a "chilling effect" and discourage
employers from making use of the positive action measures permitted
by Clause 152?
PART 14—GENERAL EXCEPTIONS
Restrictions on Foreign Nationals
Paragraph 5 allows restrictions on the
employment of foreign nationals in the civil, diplomatic, armed
or security and intelligence services and by certain public bodies.
It also allows restrictions on foreign nationals holding public
offices.
68. Was consideration given to minimising
the restrictions imposed on the employment of foreign nationals
lawfully present in the UK and how does the Government justify
the remaining restrictions?
National Security
Clause 185 and Part 1 of Schedule
3 (in particular paragraph 5) re-enact existing legislation
in making provision for a wide-ranging exemption for matters related
to national security, the intelligence services and the armed
forces. Clause 111 also provides that individuals (including
the claimant) can be excluded from proceedings in relation to
a discrimination claim if it is expedient to do so in the interests
of national security.
69. Why does the Government consider it to
be necessary to maintain such wide-ranging exceptions in the field
of national security?
Charities
Clause 186 re-enacts existing legislation
which allows charities to provide benefits only to people who
share a protected characteristic (for example who are of the same
sex, sexual orientation or disability), if this is in accordance
with their charitable instrument and if it is objectively justified
or to prevent or compensate for disadvantage. It also makes ancillary
and associated provisions, including permitting single-sex activities
and acceptance of a particular religion or belief in certain specific
and limited circumstances. Clause 188 makes similar exceptions
in respect of sporting activities.
70. Has the Government given consideration
to restricting the circumstances in which charities will be able
to discriminate on the basis of protected characteristics?
71. Will charities be able to discriminate
on the basis of protected characteristics when delivering public
services when this is in accordance with their charitable instrument?
Would such discrimination be objectively justified under clause
186(2)(a) solely on the basis that a charity was established to
benefit a particular group or to further a particular religion
or belief?
Religious Organisations
Schedule 23 substantially re-enacts a number
of important general exceptions to the prohibitions against discrimination
and harassment, covering in particular organisations relating
to religion or belief.
Paragraph 2 of Schedule 23 provides
an exception for religious or belief organisations with regard
to the provisions in the Bill that relate to services and public
functions, premises and associations. Such organisations can impose
restrictions on the basis of religion or belief or sexual orientation.
However, when discrimination in the provision of services, premises
and associations is concerned, a significant difference exists
between the circumstances in which discrimination is permitted
on the basis of religion or belief and when it is permitted on
the grounds of sexual orientation. In relation to religion or
belief, the exception can only apply where a restriction is necessary
to comply with the purpose of the organisation or to avoid
causing offence to members of the religion or belief that the
organisation represents. However, in relation to sexual orientation,
the exception can only apply where it is necessary to comply with
the doctrine of the organisation or in order to avoid conflict
with the strongly held convictions of a significant number of
followers of the religion. In addition, if an organisation contracts
with a public body to carry out an activity on that body's behalf
then it cannot discriminate on grounds of sexual orientation in
relation to that activity.
72. Why is a distinction made between religion
or belief and sexual orientation in this context, especially in
respect of the delivery of public services?
MISCELLANEOUS
Purpose Clause
The Equality and Human Rights Commission and
other groups have argued for the insertion of a purpose clause
into the Equality Bill, which could clarify the meaning of the
legislation and give guidance about its underlying principles,
aims and objectives. The Equality Bill introduced by Lord Lester
in 2003 contained a purpose clause, as was also recommended
by the Hepple Report in 2000.
73. Has the Government given consideration
to including a purpose clause in the Bill and, if so, why has
it rejected it?
Volunteers
The House of Commons Work and Pensions Committee
has criticised the lack of protection for volunteers against discrimination,
who are often not covered by existing discrimination law.[95]
74. Do volunteers receive adequate protection
against discrimination or is additional specific provision to
this effect required in the Bill?
I would be grateful if you could reply by 16 June
2009 and if an electronic copy of your reply, in Word, could
be emailed to jchr@parliament.uk.
65 Clause 1. Back
66
??? Back
67
[2008] UKHL 43. Back
68
See the Written Ministerial Statement by Harriet Harman MP, House
of Commons Debates, 2 April 2009, col. 88WS, available at
http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090402/wmstext/90402m0003.htm£09040249000024. Back
69
Equality Bill: Assessing the impact of a multiple discrimination
provision-A discussion document, GEO, April 2009, para. 2.6. Back
70
Rights and Responsibilities: developing our constitutional framework,
Ministry of Justice, March 2009, para. 3.38. Back
71
Twelfth Report of Session 2008-09, UN Convention on the Rights
of Persons with Disabilities: Reservations and Interpretative
Declarations, HL Paper 70, HC 397, paras. 58-71. Back
72
A similar exclusion exists in the field of the disposal, management
and occupation of premises. Back
73
Third Report of Session 2008-09, The Equality Bill: How disability
equality fits within a single Equality Act, vol. 1, HC 158-I,
paras. 283-292. Back
74
E.g. Chondol v Liverpool City Council [2009] All ER (D) 155 (Feb);
Ladele v London Borough of Islington Appeal No. UKEAT/0453/08/RN,
para. 111; [2009] All ER (D) 100 (Jan). Back
75
[2008] UKEAT 0123 08 2011 (20 November 2008) Back
76
Twelfth Report of Session 2008-09, UN Convention on the Rights
of Persons with Disabilities: Reservations and Interpretative
Declarations, HL Paper 70, HC 397, paras. 55-57. Back
77
13 May 2009, Col 58WS. Back
78
Clause 79. Back
79
Clause 80(1). Back
80
Schedule 11, para. 5, disapplying clause 80(1), so far as it relates
to religion or belief, in relation to schools with a religious
character or ethos. Back
81
Clause 27. Back
82
Schedule 3, para. 11(b). Back
83
Clause 80(2)(a). Back
84
Clause 84(2). Back
85
Schedule 3, para. 11(a). Back
86
Sixth Report of Session 2006-07, Legislative Scrutiny: Sexual
Orientation Regulations, HL Paper 58, HC 350 at para.
67. Back
87
Schedule 11, para. 6. Schedule 3, para. 11( c) provides a similar
exemption from the prohibition on religious or belief-related
discrimination in the provision of services. Back
88
EN, para. 828. Back
89
Human rights memorandum, para. 66. Back
90
Equality Act 2006, s. 51. Back
91
Schedule 3, para. 11(e). Back
92
Schedule 22, para. 4, which is designed to replicate the effect
of regulation 39 of the Employment Equality (Religion or
Belief) Regulations 2003. Back
93
EN, para. 939. Back
94
Schedule 9, para. 3. Back
95
Third Report of Session 2008-09, The Equality Bill: How disability
equality fits within a single Equality Act, vol. 1, HC 158-I,
paras. 134-7. Back
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