Legislative Scrutiny: Equality Bill - Human Rights Joint Committee

Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents

Annex

PART 1—SOCIO-ECONOMIC INEQUALITIES

1. Please explain how, in practice, the proposed new duty will enhance human rights for individuals.

The new duty will ensure that key public authorities—such as central government departments, local authorities, health and police authorities—have due regard to tackling the effects of socio-economic disadvantage. This should have a positive effect on the provision of education, housing, health, employment and other public services to those who are most disadvantaged. Organisations will have a certain degree of flexibility in taking this duty forward, but the Government expects them to consider how key services can improve outcomes for those who are most disadvantaged and excluded from society.

2. Please explain why immigration measures are exempt from the socio-economic duty.

Certain public authorities have a duty of care towards people who are subject to immigration control. This provision does not affect that duty in any way. Neither will it affect public authorities which go beyond their statutory responsibilities in this regard, as many do. What the provision will do is ensure that no public body is forced to go beyond those existing responsibilities in connection with helping such people.

The Government is aware that there are people suffering socio-economic disadvantage who have no right to remain in this country. The Government's position in regard to such people is clear: it wants to deter people from entering or remaining in the country illegally, and to remove them if they are not entitled to be here.

For those who are legally allowed to remain in this country, the Government has a very clear aim: earned citizenship. The Government wants them to learn English, find employment, integrate into British society, and contribute to the country. To that end, the Government runs integration programmes for refugees -precisely in order to try and ensure that they do not become socio-economically deprived.

PART 2—EQUALITY: KEY CONCEPTS

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 gender reassignment in the Bill includes people who are "proposing to undergo…a process (or part of a process) for the purpose of reassigning the person's sex…" [clause 7(1)]. This process need not involve any form of medical intervention; rather it is a personal process and can involve changes in dress and mode of living. The definition will cover those who are proposing to reassign their sex but have not taken any steps, medical or otherwise, to do so.

THE DEFINITION OF DISABILITY

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?

The Government considers that the starting point for protection from disability discrimination must be an acknowledgment that the disabled person has an impairment of some kind. Consequently, it has ensured that the Bill has a hybrid approach which takes account of the social model. The duty to make reasonable adjustments is specifically aimed at overcoming the disabling barriers that people with impairments face in society.

In developing proposals for the Equality Bill, the Government did consider the merits of a social model approach, but it concluded that it would be contrary to the aim of the legislation, which is to protect those people who have a disability in the generally accepted sense, that is to say, people who have a long-term or permanent condition.

MARRIAGE/CIVIL PARTNERSHIP

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?

In the 2007 consultation paper on proposals for the Bill, "A Framework for Fairness", the Government proposed to remove protection for married persons and civil partners as it was no longer required for its original purpose, which was to protect women who were required to resign from employment on marriage.

Responses to the consultation were equivocal on whether to keep or remove the protection. However, some responses did suggest that there were still work-related instances of discrimination on the basis of marriage or civil partnership. Some tribunal cases also support this view as they show that there are instances of discrimination where employers have a blanket policy of not allowing married people to work together and these need to be challenged. Hence, the Government considers that removing this protection may run the risk of discrimination against married people re-emerging.

Responses to the consultation did not provide any evidence to show that extension of protection was warranted beyond the current range of protection. As one of the principles in the development of the Equality Bill was to not to legislate where there is no evidence of need, the Government decided not to expand protection further than the current provision. While the original reasons for introducing marriage protection in employment may no longer exist, we consider continued protection in this discrete area is warranted.

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?

While responses to the 2007 consultation paper on the Bill suggested that there may be some discrimination on the grounds of marriage and civil partnership, they did not provide any evidence that unmarried people and those in other forms of relationships are discriminated against.

The Government therefore considers that extension of protection beyond marriage and civil partnership is not warranted on current evidence.

OTHER PROTECTED CHARACTERISTICS

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?

Genetic predisposition—The Government has considered carefully whether protection from discrimination because of genetic predisposition should be included in the Bill. A question to that effect was included in the consultation paper on proposals for the Bill and the Government set out its conclusions in the response to the consultation. The Government's view is that, at present, there is no clear evidence to suggest that discrimination is happening in this area. Some concerns were expressed about discriminatory practices in insurance and employment but in the Government's view, many of the examples presented would actually qualify as disability discrimination. However, the Government acknowledges that this is a new and developing area and will keep the situation under review. For the time being, the Government considers that the voluntary measures in place are sufficient, in particular the moratorium agreed by insurers on the use of predictive genetic test results ( which was recently extended to 2014) and the monitoring of how genetic testing is used in the UK by bodies such as the Human Genetics Commission.

If evidence were to emerge of a problem in the future, it might be that legislation other than anti-discrimination legislation was more appropriate to tackle it, for example, data protection legislation or specific rules on what can be done with genetic information.

Spent convictions—Domestic law is already clear on when spent convictions can and cannot be disclosed and considered by employers. The Rehabilitation of Offenders Act 1974 defines when convictions become spent, and the protection afforded when they do.

There are also a number of circumstances where spent convictions can legitimately be disclosed and where exceptions to the Rehabilitation of Offenders Act apply. These are specified in the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 1974 as amended.

Under current legislation it is only legally possible for an employer or other body to obtain details of an individual's spent convictions where they have a legitimate reason, covered by the Exceptions Order, for doing so.

It is therefore not necessary for spent convictions to be covered by the Equality Bill as there is already adequate cover from existing legislation which is unambiguous as to when they can and cannot be legitimately considered.

Socio-economic status—The Government did consider extending protection against discrimination to cover socio-economic status. But it concluded that (a) beyond a crude income or poverty measure, it would be very hard to define socio-economic disadvantage in a way that could be used to give individual rights; and (b) this would not in any case be the best way to address the inequalities of outcome which result from that socio-economic disadvantage.

Socio-economic disadvantage is not like the other protected grounds. It is not a single, unchangeable condition, or a fundamental aspect of someone's being. On the contrary, it is a situation characterised by complex, inter-related factors; and is situation that people will, it is hoped, rise above and move on from. It is a situation that the Government ultimately wishes to eradicate altogether.

However, socio-economic disadvantage underlies, and can manifest itself as a consequence of, many of the inequalities associated with the protected characteristics. But it is not like them, and should not be treated as such. Putting the onus on public bodies specifically to eliminate discrimination against people facing socio-economic disadvantage, would not be the best way to address the inequalities of outcome associated with that disadvantage. While it is, of course, possible that some people suffer discrimination, in particular cases, as a result of their socio-economic status, that is not the key cause of the inequalities of outcome we are looking to address. What is required is a measure to address the underlying socio-economic disadvantages.

The Bill therefore provides for a duty to be placed on key public authorities to consider the desirability of reducing the inequalities of outcome associated with socio-economic disadvantage when making decisions of a strategic nature. This will influence their priorities and their target setting, planning and commissioning processes. It will help to address the root causes of socio-economic disadvantage—in housing, in health, in education, and so on. These are the key issues. The Government considers this to be a more effective way of helping those experiencing socio-economic disadvantage.

Political opinion—The Government does not see the position of Northern Ireland and mainland Great Britain as being analogous when it comes to matters of political opinion. The Government is not aware that the exclusion of political opinion being covered as a protected characteristic has ever caused problems domestically.

Caste discrimination—The Government is always willing to consider whether there is a case for legislating to prohibit caste discrimination, but to date insufficient evidence has been presented to indicate that this is a significant problem domestically that could be resolved by anti-discrimination legislation.

In particular, there is no evidence of caste discrimination occurring in the specific fields which discrimination law covers: employment; vocational training; provision of goods, facilities and services; management or disposal of premises; education; the exercise of public functions.

Some anecdotal evidence suggests that caste considerations may be a factor in certain social or cultural situations—for example in choice of whom to marry. However, an individual's marriage choice is not a matter for discrimination law.

While the Government continues to monitor the situation, it is clear that there is no consensus that caste is either a significant problem or that claims of caste discrimination would be solved by legislation.

HARASSMENT

8. Why is harassment related to marriage or civil partnership, or pregnancy/maternity not prohibited?

Discrimination because of marriage and civil partnership is prohibited in order to address very narrow circumstances in which some employers still adopt policies which may discriminate against married people or civil partners: for example, where employers do not allow married people to work together. However, the Government is not aware of any evidence that people are harassed in the workplace because they are married or a civil partner. It does not therefore consider there is a need for such protection. If a civil partner is harassed because of their sexual orientation, protection is already provided.

With regard to pregnancy and maternity, any harassment that a woman is subjected to will be covered by the protection against harassment related to sex. The Government therefore considers that specific protection against harassment because of pregnancy or maternity is unnecessary and would add no value.

In the consultation paper on proposals for the Bill, the Government made clear that it would only legislate if there was evidence of a real problem. No such evidence was forthcoming in these cases.

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?

The definition of harassment in the Sex Discrimination Act 1975 includes a separate form of harassment which is treating a woman (or man) less favourably on the ground of her (or his) rejection of or submission to sexual harassment or sex harassment. The Act also contains a parallel provision in respect of gender reassignment. This form of harassment prohibits "less favourable treatment", but the appropriate comparator is the victim of the harassment herself, hypothetically, if she had not rejected or submitted to the harassment.

These provisions were introduced into the Act in 2005 to implement a requirement in Directive 2002/73/EC[96] that states that "A person's rejection of, or submission to, [sex harassment, sexual harassment or gender reassignment harassment] may not be used as a basis for a decision affecting that person". There is an identical provision in Directive 2004/113/EC.[97] Directive 2006/54/EC[98] states that for the purposes of the Directive, discrimination includes "harassment and sexual harassment, as well as any less favourable treatment based on a person's rejection of, or submission to, such conduct".

There is no equivalent provision in Directive 2000/43/EC[99] or Directive 2000/78/EC[100] and consequently there is no equivalent provision in respect of other protected characteristics domestically.

The Government considers that this form of harassment is primarily relevant to sexual harassment where sexual advances may be made to a person and, following submission or rejection of those advances, the person in question is treated adversely. For example, a woman being refused a promotion by the person whose sexual advances she rebuffed. The refusal of the promotion constitutes less favourable treatment because the individual had rejected the sexual advances and is, therefore, unlawful harassment.

Given the lack of clear evidence of need beyond sexual harassment, the Government can see no sound reason to extend this form of protection to other protected characteristics, and there are currently no European law requirements for such protection in this regard. The existing protections in respect of sex harassment, sexual harassment and gender reassignment harassment must be retained to comply with European legal obligations.

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?

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?

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?

Since questions 10, 30 and 35 raise similar issues, it appears convenient to answer them together.

The conjunctive versus the disjunctive definition of harassment

Under the harassment provisions in British discrimination law, a person needs to show either that their dignity was violated by the unwanted conduct, or that an intimidating, hostile, degrading or offensive environment was created as a result of it. This is the disjunctive approach. In contrast, the definition contained in the relevant European Directives requires both of these conditions to be satisfied. This is the conjunctive approach. Conduct which violates a person's dignity almost invariably also creates an offensive, etc. environment for that person and vice versa. So any extension to the breadth of the European definition is of limited effect, in the Government's view.

In addition, the domestic definition is qualified by an objective element where the conduct in question is not intended to harass. In determining whether conduct can be regarded as constituting harassment, account must be taken of the complainant's perception of the conduct, the other circumstances of the case, and whether it is reasonable that the conduct should be regarded as having the effect of harassment. This safeguard is to ensure that unreasonable allegations of harassment are not caught. This objective element is not found explicitly in the Directives, but it codifies domestic case law in a way which in the context of the definition as a whole is compatible with them.

The disjunctive approach was first adopted when the Race Relations Act 1976 was amended to implement the Race Directive. At the time, domestic case law had established that a person who complained of harassment contrary to the direct discrimination provisions of the Race Relations Act needed to show only that the conduct had been intended to violate his or her dignity (or had that effect) or had been intended to create an intimidating, hostile etc environment (or had that effect). Subsequent Directives define harassment in similar terms to the Race Directive, and the Government has implemented these provisions in broadly similar terms in domestic law. The Government considers that to use the conjunctive approach in domestic discrimination law now would risk breaching the principle of non-regression in European law.

Consideration of a narrower definition in certain circumstances

The Government has ruled out using a narrower definition of harassment where European law does not apply, because one of the key aims of the Bill is to simplify and harmonise the law. Introducing a two-tier approach to harassment would introduce new and, in the Government's view, unnecessary legal complexity.

As regards the provision of goods, facilities and services and the performance of public functions in relation to religion or belief or sexual orientation, the Government has not been provided with evidence of a compelling case to provide protection from harassment. So it does not consider there is a basis for legislating nor that there is any need to consider whether a narrower definition would be warranted (with the complexities it would introduce) in these areas.

DISCRIMINATION RELATED TO DISABILITY

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")?

Questions 11 and 12 raise similar issues, so the following text answers them together.

The provision in Clause 14 concerning discrimination arising from disability is intended to provide a level of protection similar to that provided by the disability-related discrimination provision in the Disability Discrimination Act 1995 [DDA] prior to the judgment of the House of Lords in the case of Lewisham v Malcolm. It was not appropriate to carry forward the disability related-discrimination provision in the DDA because the interpretation of the House of Lords meant that disabled people did not have the level of protection the Government had intended. Therefore, it was necessary for the Government to revise the drafting when developing a successor provision for the Equality Bill.

Clause 14 is aimed at providing protection, as disability-related discrimination does at present, from discrimination that arises not simply because a person is disabled, but because of an effect of, or something arising from, that person's disability. The new provision will provide protection for a disabled individual from a disadvantage which would be a detriment for any person. This may be illustrated by an example in the Explanatory Note to the provision in the Bill. A visually-impaired man is dismissed because he can only continue to carry out his job if he has access to assistive technology, and such technology is not compatible with the employer's Information Technology system. Dismissal would be a detriment for any individual but, in this case, the detriment only arises because of the impact of the person's disability. He would not have been dismissed if he did not have a visual impairment that meant he required assistive technology to enable perform his job.

The Government considers that the removal of the need to establish a comparator, which is currently required by the disability-related discrimination provisions in the DDA, will strengthen the legislation by making it easier for a disabled person to show that he or she has been subject to detrimental treatment. The application of indirect discrimination provisions to disability will further strengthen protection from discrimination for disabled people because it will assist in tackling and preventing systemic forms of discrimination that would have detrimental effects on particular groups of disabled people.

As a consequence, the Government is satisfied that the replacement of protection from disability-related discrimination by protection from discrimination arising from disability, and from indirect discrimination will not violate the "non-regression principle" set out in Article 8.2 of Directive 2000/78/EC.

DISCRIMINATION AGAINST CARERS

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?

In the Coleman case, the European Court of Justice ruled that Directive 2000/78/EC must be interpreted as meaning that the prohibition of direct discrimination laid down by the Directive "is not limited only to persons who are themselves disabled". The Government considers that the definition of direct discrimination in clause 13 of the Equality Bill clearly complies with that ruling in that it does not specify that the victim must be a disabled person, merely that they have suffered less favourable treatment "because of" disability, in contrast with the definition of direct discrimination in section 3A(5) of the Disability Discrimination Act 1995. The formulation "because of", like the currently used phrase "on grounds of" for certain protected characteristics, includes less favourable treatment on account of a person's association with a disabled person.

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?

It is well established and well understood that the definitions of direct discrimination in current legislation using the words "on grounds of" the relevant protected characteristic (ie race, religion or belief and sexual orientation) are broad enough to cover cases where the less favourable treatment is because of the victim's association with someone who has that characteristic (as said by Lord Simon in Race Relations Board v Applin [1975] AC 259, at 289), or because the victim is wrongly thought to have it (as said by Lord Fraser in Mandla v Dowell Lee [1983] 2 AC 548, at 563). As the words "because of" a protected characteristic used in clause 13 do not change the legal meaning of the definition, there is therefore no need to explicitly prohibit discrimination on the basis of association and perception on the face of the Bill. To do that would also run the risk of excluding other cases which the courts have held are covered by the words "on grounds of" (see, for example, Showboat Entertainment Centre Ltd v Owens [1984] ICR 65 and English v Thomas Sanderson Ltd [2009] ICR 543) and future cases which the Government would want the equally broad and flexible formulation "because of" to extend to.

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?

The consultation paper on proposals for the Bill indicated that the Government was not persuaded of the need to create broad-based freestanding discrimination legislation for carers; and that it was considered to be more appropriate to continue with targeted provisions and specific measures instead. The Government asked for comments on this approach and, after considering the responses received, decided not to extend protection against discrimination specifically because of parenting or caring responsibilities. The main reason is that, unlike the other protected characteristics, the role of a carer primarily concerns what a person does, rather than who they are. The Government continues to believe that measures such as the right to request flexible working are better suited to supporting carers than the provision of an additional protected characteristic in discrimination law.

Under the Bill, carers are protected if they suffer direct discrimination or harassment because of their association with a disabled person or person of a certain age. This protection extends to carers under the age of 18 who are discriminated against because of their association with an older person they care for. The protection for associates of disabled people does not extend to requiring reasonable adjustments, such as flexible working. Such a provision is not necessary. This is because, in recognition of the valuable role carers play and the additional responsibilities and challenges they face, the Government has already extended employment legislation to include the right for carers to request flexible working.

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?

Following the 2007 consultation paper on proposals for the Bill and a further period of discussion, the Government has developed a proposal that is limited to combinations of two protected characteristics. Most of the examples that have been provided during consultations concern less favourable treatment involving just two protected characteristics. Whilst it is possible to envisage people being discriminated against because of a combination of three or more characteristics, as the number of protected characteristics being combined increases, it becomes decreasing likely that the particular combination being alleged is the reason for the less favourable treatment. Evidence indicates that enabling claims combining two of the protected characteristics would provide protection for the vast majority of people who experience multiple discrimination. Citizens Advice showed us that out of 13,000 clients who visited them between April 2008 and December 2008, 1,072 (8 per cent) presented with two grounds of discrimination and only a further 119 presented with three or more grounds. This indicates that the large majority of cases of discrimination concern one or two protected characteristics. Therefore the vast majority of cases of multiple discrimination would be addressed by allowing claims combining two protected characteristics and the benefit of extending protection to combinations of three or more protected characteristics would be marginal.

A higher number of permitted combinations could make the law more complex and significantly increase the burdens for employers. Therefore, the proposal based on combinations of two protected characteristics would ensure, in the Government's view that protection is provided for the great majority of incidents of multiple discrimination, without imposing disproportionate burdens.

17. Why does the Government consider that it is unnecessary to prohibit indirect discrimination or harassment which is based on multiple grounds?

The Government is not convinced of the need to prohibit indirect discrimination on multiple grounds as there is insufficient evidence that victims of indirect discrimination are failing to secure the protection they deserve through single-strand claims. Indirect discrimination involving more than one protected characteristic (for example, dress codes which prevent Muslim women from covering their faces or Sikh men from wearing turbans) is likely to be remedied under current law. Requiring employers to assess the impact of their provisions, criteria and practices on possible combinations of protected characteristics would impose a significant and in the Government's view disproportionate burden, without clear evidence that there is a problem under existing law. Requiring businesses and employers to assess the impact of their provisions, criteria and practices on all possible combinations to ascertain whether any disadvantage may result would require significant time and resources. If unlimited (in number and as to protected characteristics), there are 511 possible combinations of protected characteristics. We consider this to be a disproportionate burden in light of the fact that there is little evidence to suggest that victims of indirect discrimination are failing to secure a remedy under the current law. In contrast, imposing the prohibition in respect of direct discrimination does not require businesses and employers to do anything more to avoid liability than to continue to ensure that they make decisions based on rational, non-discriminatory reasons.

As with indirect discrimination, there is no evidence that harassment cases are failing due to a lack of an intersectional remedy. Indeed, the broader definition of harassment in the Bill (replacing conduct "on ground of" a protected characteristic with conduct "related to" a protected characteristic) makes it even less likely that intersectional harassment would fail to find a remedy by means of a single strand claim.

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?

Multiple discrimination is a complex issue. It has necessitated significant time and effort to identify whether or not there is a problem and, if so, its extent; and to propose an appropriate remedy. Having considered the responses to the 2007 consultation paper on proposals for the Bill, the Government made a commitment to explore the issue further. Given that the Government had not made up its mind because of the need to consider further, it would not have made sense to include provisions on multiple discrimination in the Bill at the outset. Instead, it has recently undertaken a six week discussion to specifically assess whether its proposal is both effective and proportionate. It will consider the outcome of this process before deciding whether or not to seek to amend the Bill.

PART 3—SERVICES AND PUBLIC FUNCTIONS

SERVICE PROVISION AND THE PERFORMANCE OF PUBLIC FUNCTIONS

19. Does the Government consider the exceptions listed in Part 1 of Schedule 3 to be necessary and proportionate? If so, why?

As reflected in existing legislation, including most recently the relevant provisions of the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007, the Government considers that these exceptions in the Equality Bill are indeed both necessary and proportionate.

As reflected in current legislation, the Government considers that there are a number of public bodies and public functions which it is necessary to exempt, on constitutional and public policy grounds, from the prohibitions on discriminating against, harassing or victimising a person in the provision of services or the exercise of a public function.

The exceptions in Schedule 3 Part 1 are therefore 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 may interfere with these rights in order to protect the wider interests of society. The wider interests reflected in Part 1 are those of parliamentary sovereignty, legislative freedom, judicial independence, national security and combat effectiveness of the armed forces.

The Government has sought in drafting these exceptions to ensure that they are indeed proportionate. For example, the exceptions for the judiciary and the security services may appear broad on their face. However, in the case of the judiciary, it should be kept in mind that any apparent discrimination by a judge in conducting a case could be raised on appeal in so far as it amounted to his or her taking into account irrelevant considerations or not taking into account relevant considerations in reaching his or her decision. Equally, complaints against individual judges can be made to the Office of Judicial Complaints. Similarly if an individual believes that any of the intelligence and security agencies has discriminated against him/her in the exercise of their functions, he/she has a right of complaint to the Investigatory Powers Tribunal.

The law-making exception seeks to protect our fundamental constitutional principle of parliamentary sovereignty as well as allowing debates on and the making of legislation which may, for entirely legitimate reasons, treat people with particular protected characteristics differently: for example, health and safety regulations which might potentially discriminate against disabled people.

A CONSTITUTIONAL EQUALITY CLAUSE?

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?

Ministers already have to make a statement of compatibility of legislation with the Convention rights, which encompasses Article 14 rights to equality in the protection of those rights—and indeed such a statement is made on the front of the Equality Bill.

Some initial consideration is also being given to a statement of equality, as part of the Green Paper, "Rights and Responsibilities: developing our constitutional framework". Further consideration needs to be given to this issue and for this reason, the Government does not consider that the Equality Bill should contain a constitutional equality guarantee. Instead, the question should be considered as part of our broader work to develop our constitutional framework.

That Green Paper seeks views on, among other things, the articulation of "an accessible and straightforward statement of equality" as part of a possible Bill of Rights. The Government believes this issue should be considered as part of that wider debate about our constitutional framework.

This is potentially a complex area and the Government considers it is right to proceed with caution, so as to reduce the risk of unintended consequences for legislation generally, including the Equality Bill. It would be important to ensure, for example, that a constitutional statement of equality or an equality guarantee did not cut across specific provisions in discrimination legislation as embodied in the Equality Bill, in a way that would upset the highly nuanced balance which the Bill aims to achieve between potentially conflicting rights, through the use and extent of exceptions. Finally, it would also be necessary to ensure that domestic legislation continued to comply with EU legislation, given that much of the domestic anti-discrimination law follows the European law model.

THE IMMIGRATION EXCEPTIONS

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?

The UK Border Agency needs to be able to treat different groups of people in different ways in order to deliver its immigration and public protection duties. In various circumstances policies and decisions may be such that they are based, whether directly or indirectly, on matters of nationality, national or ethnic origin, religion or belief and health (and therefore potentially disability).

It is therefore necessary to provide certain exceptions to the provisions prohibiting discrimination when exercising a public function to enable the UK Border Agency to carry out the Government's immigration policy. The exceptions are of a limited nature and reflect existing legislation. They will not allow the immigration authorities to take any actions that they are not currently permitted to take.

The disability exception is needed to enable the immigration services to take decisions regarding a person's entitlement to enter or remain in this country based on what is necessary to the public good, most notably to protect public health and safety. This exception is not about allowing the immigration authorities to exclude a person simply because they have a physical or mental impairment. Instead, it is aimed primarily at excluding people who present a risk to public health because they are carrying an infectious disease.

Many immigration laws and policies require differential treatment on grounds of nationality and also national or ethnic origin. For example, different visa requirements may apply to people from different countries depending on a variety of historical, political and diplomatic reasons. In addition, immigration officers may need to give extra scrutiny to entrants of a particular nationality, if there has been evidence of immigration abuse by people of that nationality. Effective casework management may require prioritising claims by reference to nationality or ethnic origin when, for example, it is known that claims from one particular group are relatively straightforward. The race exception allows the immigration authorities to carry out these policies with sufficient flexibility to enable them to respond to constantly changing situations.

The first of the exceptions for religion or belief is necessary to ensure a proper balance is achieved between the rights of individuals not to be discriminated against and the wider interests of the community such as public safety and national security. This exception would therefore ensure that immigration authorities excluding so-called "preachers of hate" where to do so is conducive to the public good could not be challenged for discrimination because of religion or belief.

The second of the exceptions for religion or belief serves to allow ministers of religion, missionaries and members of religious orders to continue to be treated as distinct categories under the new points based system and to ensure that only those belonging to genuine religious institutions can gain entry in such a capacity.

Finally, it needs to be kept in mind that the UK Border Agency is subject to monitoring by the Chief Inspector of the UK Border Agency, whose position was established by the UK Borders Act 2007. His statutory duties are to monitor and report on the efficiency and effectiveness of the UK Border Agency. This specifically includes considering and making recommendations about the agency's compliance with law about discrimination in the exercise of its functions.

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)

The exception does not provide the UK Border Agency with new powers to exclude disabled persons from the UK. It supports existing powers to exclude from the UK people with serious infections, including tuberculosis (TB), where this is necessary for the public good and where the person is also disabled. Although TB is not in itself a disability, those with TB can be affected to the extent that they are considered disabled.

The UK Border Agency has a long-standing policy of screening people subject to immigration control seeking entry for more than six months from high risk countries for active infectious pulmonary TB. In 2005 the UK also commenced a pre-entry TB screening programme which currently applies to residents of 15 countries. Under this programme, visa applicants found to have active infectious pulmonary TB must complete a course of treatment in their home country before being re-tested. Those free of infection are given a secure certificate which they must present to the Entry Clearance Officer in advance of their visa application being considered.

Existing screening policy reflects the fact that TB remains a serious public health threat and that of the 8,417 cases of TB reported in the UK in 2007, 72 per cent involved people who were born outside the UK. In 2007, 7.4 per cent of people with TB were resistant to at least one first line drug, with this resistance being more common in people born outside the UK.

AGE DISCRIMINATION IN THE PROVISION OF SERVICES

23. What exceptions are intended to be introduced in respect of age discrimination outside the workplace?

The Government will be publishing a consultation paper this summer, on its proposals for exceptions to the ban on age discrimination in goods, facilities and services and public functions. The Government does not want to stop age-based practices that are justifiable, beneficial or based on good public policy reasons. The consultation document will cover three main areas:

— health and social care, where a national review led from the South West is looking at the issues in depth and will report in October, including on exceptions for those sectors;

— financial services, where the Government has always expected to make an exception for age to continue to be used as a criterion in so far as it relates to risk; and

— other services such as concessions and group holidays for particular ages.

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?

Framing the exceptions for age across all goods, facilities, services and public functions is challenging and complex. It is vital to get this right and to give service providers time to prepare to implement the ban. The Government has made clear from the outset that targeted exceptions would be prescribed later in an Order, but only following further work and consultation.

The desire for urgency should not be at the expense of the quality of the law. The summer consultation will not be the last on the matter. The Government will also consult on the draft Order or Orders themselves (the target for this consultation is 2010 when the position on the new draft EU Anti-Discrimination Directive should be clearer) before they are laid before Parliament. So there will be a good deal of information available about the exceptions the Government intends to provide by the time the relevant clause in the Bill is scrutinised by Parliament and there will be a further opportunity to consider the draft legislation in due course.

The Government is determined to bring the ban, together with the relevant exceptions, into force as soon as is practicable. The aim is to do so by 2012 for everything apart from health and social care. For the latter, it is important that the further work the Department of Health has put in train is completed.

25. Why are children excluded from discrimination on the grounds of age in the provision of services and the performance of public functions?

The decision not to extend age provisions in relation to goods, facilities and services and public functions to under 18s has been taken after careful thought. The Government believes that discrimination law would not be an effective, appropriate or helpful way of tackling the problems experienced by children and supporting them in their upbringing, and could have significant negative consequences.

Most arguments presented in favour of extending age provisions to under 18s seem to be based on complaints about negative attitudes towards, negative opinions of and mistrust of young people—but the examples of such matters which have been provided to the Government are generally not issues which could be dealt with effectively through age discrimination law.

The Government wants to protect special and tailored services for children. Extension of the age discrimination ban outside the workplace to children could render any service aimed at children, or particular groups of children, vulnerable to challenge under discrimination law.

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?

Nothing in the Equality Bill will diminish or remove a child's rights under the UN Convention. There is no positive obligation on States under the Convention to provide protection from discrimination in all situations. The fact that a piece of legislation which provides such protection sets limits on the circumstances in which it applies does not give rise to any breach of Convention rights. In order to argue that a State has a positive obligation to legislate, it would be necessary to demonstrate that a lack of legislation gave rise to a serious breach of individuals' Convention rights, which is not the case.

THE EXCLUSION OF HARASSMENT ON THE GROUNDS OF RELIGION OR BELIEF OR SEXUAL ORIENTATION

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,[101] and in particular why was it not considered necessary to prohibit harassment related to these characteristics in the provision of public services?

The 2007 consultation paper on proposals for the Bill invited evidence of a need for express protection against harassment on grounds of age, disability, religion or belief and/or sexual orientation in any or all the relevant fields: the provision of goods, facilities and services; education in schools; the management or disposal of premises; and the exercise of public functions. Nothing in the responses received indicated that there is a problem of harassment related to sexual orientation or religion or belief in these fields such that there is a need for legislation in those areas.

After careful consideration of the issues, which are particularly complex (and often conflicting) in the case of sexual orientation and religion or belief, the Government found that there was little, if any, evidence that conduct amounting to harassment because of sexual orientation or religion or belief takes place in the fields outside work. In relation to sexual orientation, Stonewall confirmed this conclusion when giving oral evidence to the Public Bill Committee on 2 June.

Whilst a number of examples were provided of conduct that was considered by respondents to be harassment, the majority of these involved circumstances which would be caught by the discrimination provisions in the Bill or are not properly the subject of discrimination law at all, such as personal abuse in the street.

It should also be noted that the public sector Equality Duty has a role in ensuring that public authorities when carrying out all their functions will need to have due regard to the need to foster good relations in respect of all protected characteristics.

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?

Yes. This is because the Government has not been provided with any evidence that people are subjected to unwanted conduct that would not be remedied by the protection provided against direct or indirect discrimination.

For the purposes of Article 14, the applicant must be being treated differently from those in comparable situations. To the extent that Article 14 is engaged by the lack of protection from harassment outside the workplace in relation to sexual orientation and religion and belief, the Article states that giving different levels of protection in some circumstances to different protected groups does not amount to discrimination on the ground of their protected characteristic.

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?

When the Government sought examples of harassment because of religion or belief or sexual orientation that might be occurring in the provision of goods, facilities or services or the exercise of public functions, there was little evidence that additional protection was needed in these areas. In these circumstances, the Government considers that the vast majority of situations where any such conduct takes place would be covered by the prohibition of discrimination.

This question has been answered as part of the response to question 10 above.

PART 4—PREMISES

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?

The Government undertook various discussions and a public consultation exercise in advance of the Bill, but insufficient evidence was forthcoming to justify extending the provisions on premises to cover the characteristics of age or marriage and civil partnership.

In the case of marriage and civil partnership, protection on these grounds only exists in regard to employment matters. The Government can see no justification for extending such protection to matters related to premises. If there were any instances of discrimination related to the provision of premises in the context of employment, the provisions elsewhere in the Bill relating to work would apply, rather than the specific provisions on premises within this Part.

In relation to age, some forms of housing are provided exclusively to people in a particular age range. Age limits may be imposed to meet the needs of a disadvantaged group (defined by age), or to cater for the preferences of individuals who simply wish to live exclusively with people of a similar age.

The consultation responses did not reveal any instances of harmful age discrimination in the management and disposal of premises which would require the extension of prohibitions. The Government does not wish to interfere unnecessarily with the private arrangements which individuals make for their accommodation. The Government also believes that housing providers should be able to continue to impose age limits in order to cater effectively for age-related need and to meet individuals' preference to live with people of a similar age.

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?

The Government has considered whether it should place an anticipatory duty to make reasonable adjustments on landlords. It has decided, however, that the present provisions in the Disability Discrimination Act 1995, as amended, should be carried forward to the Equality Bill. These provisions reflect the fact that, generally, the relationship between a disabled tenant and landlord is longer-term than the transitory relationship between a disabled customer and a service provider. The Government considers that it is more appropriate to make the duty subject to a request by the disabled person, because it enables the adjustment to be better tailored to the requirements of the individual disabled person. Placing a duty on a landlord to make anticipatory adjustments could result in adjustments that are not suitable for the particular disabled tenant or occupier. Furthermore, it might result in the landlord having to use resources on anticipatory adjustments which could be channelled into more tailored adjustments.

PART 5—WORK

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[102]), provide legal clarity for employers and employees and avoid litigation? If so, why has it rejected this approach?

No explicit consideration was given to codifying recent case law developments in cases such as Chandol v Liverpool City Council or Eweida v British Airways.

This is for two reasons. Firstly, the Government considers that the Bill as it stands provides appropriate legal clarity, both for employers to determine their legal obligations and for employees to understand their rights.

Secondly, any judgment handed down by a court or tribunal is very much dependent upon the specific facts of the particular case in question. The Government does not consider it necessary, helpful or practical for legislative provisions to be so specific that they could attempt to cover every employment scenario that may arise. To attempt to do so would potentially create provisions too detailed and too cumbersome to be effective. One of the main considerations for this Bill is to achieve simplification of the law—adding the level of detail necessary to cover all potential scenarios would go against that principle.

The Government considers that there is sufficient legal clarity in the drafting of the Bill to enable courts and tribunals apply the law properly to the facts of any particular case. In due course, guidance will also be issued that will assist employers in understanding their specific obligations under the Bill.

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?

No. We are however aware of a situation where a Christian charity worker in Southampton was suspended from his job after revealing to a colleague that he did not believe in gay marriage or the ordination of gay clergy. We have been led to believe that his bosses told him that expressing his religious beliefs on same-sex unions broke the charity's culture and code of practice designed to prevent people from being harassed. An investigation and a disciplinary hearing were ordered and we are not aware whether, or how, this matter has been concluded.

This question has been answered as part of the response to question 10 above.

OCCUPATIONAL REQUIREMENTS

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?

The word "genuine" does not add anything to the ordinary meaning of the word "requirement". The question whether having a protected characteristic is or is not a requirement for a particular occupation will be a matter of fact to be determined in the circumstances of each case. If it is not genuine, the facts will show that it is not a requirement.

The Government does not therefore believe that including this word is necessary to achieve the desired legal effect. The inclusion of unnecessary words will not assist in achieving one of the principal objectives of the Bill: to make the law as clear and accessible as possible.

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?

Paragraph 3 of Schedule 9 permits organisations with an ethos based on religion or belief to require an employee to be of a particular religion or belief. The organisation must show that being of that religion or belief is a requirement for the work, taking into account both the nature or context of it and the ethos of the organisation—the requirement must not be a sham or pretext.

It is very difficult to see how in practice beliefs in lifestyles or personal relationships could constitute a religious belief which is a requirement for a job, other than for ministers of religion (and this is covered in paragraph 2 of Schedule 9). It is perhaps worth noting, however, that if an employee has been employed on the basis of an occupational requirement to be of a particular religion or belief and the employee can no longer be considered to be of that religion or belief eg an employee who has lost faith, then the employer would be able to terminate employment as the employee would no longer meet the occupational requirement.

Is the position different if a religious organisation is wholly or mainly delivering public functions?

No.

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?

Paragraph 3 of Schedule 9 sets out an occupational requirement test which covers organisations with an ethos based on religion or belief: for example, an organisation run by a religious group, such as a hospice. This provides an additional exception that organisations with a religious ethos may rely on. The reason for this additional exception is that it recognises that religious organisations need to be able to preserve their religious ethos, and that is why it covers only the religion or belief strand. This exception is derived from Article 4.2 of the Equal Treatment Directive [2000/78/EC], which allows a difference of treatment with regard to employment based on a person's religion or belief in certain limited circumstances having regard to the employer's ethos. However, this exception does not apply in relation to other protected characteristics such as sexual orientation. Similarly Paragraph 3 covers only religion or belief and not the other grounds, including sexual orientation.

MILITARY EXEMPTION

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 six months of Royal Assent being granted to the Equality Bill?

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 six months of the Equality Bill being granted Royal Assent.

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.

There is a need to enter a reservation in respect of the Armed Forces, reflecting the relevant provisions of the "Equal Treatment Directive" (see above) and the Disability Discrimination Act. These provisions are required to preserve the combat-effectiveness of the Armed Forces.

The Armed Forces are called on to perform a wide range of different tasks and great damage would be done if the base requirement for physical fitness was abandoned. Personnel have to meet fitness standards to ensure that they have the fitness attributes to cope with the physical demands of service in the Armed Forces such as prolonged working, stressful situations and arduous environments and that they do not become a liability or danger to others in an operational environment.

PART 6—EDUCATION

THE SCOPE OF PROTECTION

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?

It would be inappropriate to extend the marriage and civil partnership discrimination provisions to education. The Government can see no need for such protection. Pregnancy and maternity discrimination provisions are applicable in education generally, but not in schools where the Government considers that the current system— where schools are encouraged to work with any pupils who become pregnant, and those pupils are encouraged to seek help and support inside and outside school, including to help them get back into education—is the best way of ensuring that very young mothers and their children receive the best support.

SCHOOL ADMISSIONS

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?

Faith schools make an invaluable contribution to the way in which this country discharges its duty under Article 2 of Protocol 1 of the European Convention on Human Rights (ECHR)—to respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions. The Government remains committed to supporting existing faith schools and the establishment of new faith schools, where local public consultation has shown that this is what parents and the community want.

There is a long-standing tradition of church schools in this country. The English education system developed in partnership with the mainstream Christian churches whose involvement in education predates the involvement of the state, catering for all children, but especially the most disadvantaged. Between 1811 and 1860, the Church of England founded 17,000 schools through its National Society to offer education to the poor. This was at a time when the Government was not prepared to take on this role.

The 1944 Education Act introduced the current dual system and since then faith communities have been able to apply to set up schools in the maintained sector in response to demand from parents. Roman Catholic, Church of England and Jewish schools have existed in the maintained sector since the late 19th century, along with Methodist and Quaker schools. Only recently, since May 1997 under this Government, have the first Muslim and Sikh state schools been opened, as well as the first Greek Orthodox, Seventh Day Adventist schools and United Reform Church school. The first maintained Hindu school opened in September 2008.

In September 2007 the Government and maintained faith school providers launched a joint vision statement—Faith in the System—to set out their shared understanding of the significant contribution faith schools make to school-based education, the wider school system and society in England. This publication demonstrates with case studies how faith schools are actively reaching out to their communities, building strong links which encourage good relations between pupils of different races and socio-economic backgrounds.

The Government is confident that the working relationships and trust that have contributed to this document, along with the new, statutory School Admissions Code and the new duty on all maintained schools to promote community cohesion, will provide the impetus for all schools, including faith schools, to improve on the good work already taking place around community cohesion.

Many parents, including those who are not of a particular faith, seek places in these schools because they value their distinctive ethos, character and standards. Faith schools make a welcome contribution to the school system, both as a result of their long standing role as providers of education, and now as key stakeholders in contributing to a more diverse school system with greater opportunities for parental choice.

Maintained faith schools enable parents to obtain a non fee-paying education in accordance with their religious, philosophical and ethical beliefs. By their existence, maintained faith schools empower and integrate minority faith communities by increasing the availability of places within the maintained sector where there is a demand for such places.

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?

The Government is clear that parents must have, wherever possible, a choice amongst local schools. It believes that this diversity of provision strengthens local delivery towards agreed outcomes, including raising standards. The Government encourages all schools to develop a distinct ethos, and some schools can lawfully base this on a commonly-held faith.

The UK has a duty under Article 2 of Protocol 1 of the ECHR to respect the right of parents to education and teaching in accordance with their own religious and philosophical convictions. The Government believes that to fulfil this duty, faith schools need to be allowed some freedom in relation to the pupils they admit. Otherwise, they would not be able to deliver education in the way that parents wish.

However, whilst allowing these exceptions, it is not always necessary for faith schools to use them for their entire intake. In practice, many faith schools take pupils of other faiths or none.

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?

Justification for the faith school exemption does not carry more weight in relation to minority faith schools. All maintained faith schools are in an equitable position in relation to admissions and may only apply faith-based admission criteria when the school is oversubscribed.

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))?

The Government has given careful consideration to the complex issues which arise in respect of harassment related to sexual orientation, gender reassignment and religion or belief. It does not consider that a real need for such protection has been demonstrated in education.

In relation to religion or belief, problems could arise when dealing with different religious views—people of certain faiths could object on religious grounds to such things as sex education, physical sports for girls, co-educational classes or use of IT. Claims that the mere existence of these functions or facilities in schools constitutes a hostile or offensive environment for a child of such a faith could make it difficult for schools to operate effectively in the interests of all their children. Similarly, issues could arise in schools or in higher education which could undermine the principles of academic freedom of exploration and debate of ideas of all kinds

In relation to sexual orientation and gender reassignment, bullying and harassment in schools is an issue that the Government takes extremely seriously. However, evidence points to the main problem being bullying between pupils rather than harassment of schoolchildren by adults such as teachers. The relationship between one pupil and another is not covered by discrimination law and the extension of harassment protection would not offer any additional solution.

Behaviour by school staff which amounts to harassment of children because they are gay or transsexual will, in any circumstance that the Government can envisage, be caught by the provisions which prohibit discrimination by schools against pupils, so the addition of a separate prohibition on harassment would not add any extra protection.

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?

This is not the case. Faith schools are designated as such by the Secretary of State. Only those maintained schools so designated may apply faith-based admissions criteria and then only when the school is oversubscribed. [see question above]

Paragraph 2.48 of the School Admissions Code states that "admission authorities for faith schools should only use the methods and definitions agreed by their faith provider group or religious authority". Paragraphs 2.50 to 2.52 then set out the legal duty for such schools to follow guidance issued by their religious authority. It would not be appropriate to comment on the detail of the case involving the Jewish Free School*, as this is subject to a Court of Appeal judgment that is not expected until July 2009.

*The Jewish Free School is voluntary-aided school in the London Borough of Brent. From 6-8 March 2008, a judicial review was heard by the High Court on the grounds that the school's admission arrangements were (allegedly) racially discriminatory, naming two families as the primary complainants.

The case centred on the acceptance or rejection of religious conversions in the context of the school's admissions policy, as to whether or not the children concerned were considered by the school to be Jewish. The case had to be brought for racial discrimination because it is unlawful for schools to discriminate on racial grounds—it could not be brought on the basis of religion or belief, since faith schools can obviously discriminate on those grounds.

The Secretary of State was named an interested party in the case, and submitted a witness statement setting out the purpose of maintained faith schools.

The High Court judge ruled that there was no direct or indirect racial discrimination. He dismissed the judicial review on all but one ground: that the school had not fully complied with section 71 of the Race Relations Act 1976 because in drawing up its Race Equality Policy it had failed to give sufficient consideration to the need to eliminate unlawful racial discrimination and the need to promote equality of opportunity and good race relations. However, the father who had sought a place and initiated the complaint was not entitled to damages—only a declaration to the effect above.

From 12-14 May 2009, the case was heard by the Court of Appeal. The arguments were essentially repeated to the three sitting judges, and centred around whether being Jewish was derived from a person's ethnic origins, the manner of any religious conversion, their religious adherence, or a combination of these. At no stage was it argued or suggested that the JFS school's religious orthodoxy—certainly in respect of its pupil admissions policies—differed from its religious authority. The Court of Appeal judgment is expected around July 2009.

CURRICULUM

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?

It is possible to define the content of the curriculum as this is contained in statutory programmes of study which set out the content of each subject to be taught. There is also a statutory inclusion statement which sets out the principles teachers must follow to ensure that every child, irrespective of ability, sex, social and cultural background, ethnicity or disability, has the opportunity to achieve to the best of their ability.

However, it is not sensible to define the content of course materials or the way the curriculum should be taught as this is for schools to decide as part of their responsibility for the management of the curriculum. Such matters are left to schools because it is only at this level that the needs of all pupils can be identified and met, through whole curriculum planning.

It is the role of schools and teachers to decide how best to organise learning, taking account of local circumstances, resources, interests, aptitudes and backgrounds of their pupils. It is also up to schools, head teachers and teachers, who are the professionals, to decide how the curriculum is organised and delivered and which aspects of the curriculum to cover in depth, and how long to spend on the different aspects.

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?

The purpose of the exemption is not to enable religious schools to maintain their ethos. Through the exemption, the Government is adopting a consistent approach for all maintained schools to allow them to provide a full curriculum with ideas that challenge pupils and lead to open and honest discussion and contemplation. The Government wants to ensure that every child, irrespective of ability, sex, social and cultural background, religion or belief, ethnicity, disability, or sexual orientation?] has the opportunity to achieve to the best of their ability and to come into contact with a diverse range of views. The exemption for the curriculum is therefore necessary to ensure that all schools cannot be challenged over curriculum matters. In relation to religion or belief, this could take the form of complaints that certain texts or books are being used which are not in accord with a particular religion—or complaints about mixed lessons or P.E because this is contrary to the beliefs of a certain religion. In relation to faith schools, for example, a non-Catholic pupil in a Catholic school could complain about the Catholic theme and approach to lessons. It is therefore necessary that schools, faith or otherwise, are able to deliver a balanced curriculum, in accordance with education guidance and which cannot be challenged because someone disagrees with it on religious or other grounds.

48. Please explain why the Committee's preferred approach in our Report on the Sexual Orientation Regulations should not be followed.

There has been no concrete evidence that the broader exemption from the content of the curriculum contained within the Equality Bill will lead to unjustifiable discrimination.

Personal, Social and Health Education (PSHE) enables children and young people to reflect on and clarify their own values and attitudes, and explore the complex and sometimes conflicting range of values and attitudes they encounter now and in the future.

The programmes of study are designed to be flexible so that schools can develop a curriculum relevant to their pupils and appropriate to pupils' abilities and backgrounds. Through PSHE, pupils learn about different types of relationships, including gay and lesbian relationships. Faith schools will be able to teach, as now, the tenets of their faith including the views of that faith on sexual orientation and same sex relationships. What they cannot do is present these views in a hectoring or harassing or bullying way which may be offensive to individual pupils or single out individual pupils for criticism.

When PSHE becomes statutory in 2011, subject to the outcome of public consultation, all maintained secondary schools will be required to teach pupils about different types of relationships, including those within families, marriage and between older and young people, boys and girls and people of the same sex, including civil partnerships. Pupils will also need to be taught that all forms of prejudice and discrimination, including on grounds of sexual orientation, must be challenged at every level. In the new primary curriculum, to be introduced in 2011, it is proposed that all children are taught how to form and maintain relationships with a range of different people, and how to manage changing emotions and new relationships. It is suggested in the accompanying explanatory curriculum text that this should include learning about civil partnerships.

What is taught in Sex and Relationships Education explicitly allows faith schools to teach in a way consistent with their religious ethos and values, whilst recognising that pupils must form their own views and beliefs, and respect themselves and others. Faith schools should be able to retain that freedom, which is central to their role.

Imposing a duty not to discriminate on grounds of sexual orientation in relation to the content of the curriculum could be taken to expose faith schools to the possibility of legal challenge (even if ultimately found to be misconceived) on the grounds that the duty not to discriminate required them to give equal prominence to values and conduct which were incompatible with the school's ethos. This is not the case and it for this reason that the Bill makes explicit that the content of the curriculum is not, of itself, discrimination.

COLLECTIVE WORSHIP

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?

The law on collective worship reflects that the religious traditions in GB are, in the main, Christian. The latest evidence from the 2003 Census on religious affiliation confirms this position, with 73 per cent of the population identifying themselves as "Christian". However, the law also allows schools to provide an experience of collective worship that is relevant to all pupils, no matter what their background or beliefs, ensuring that collective worship is presented in an inclusive and positive way that benefits the spiritual, moral and cultural development of children and young people.

Because collective worship must be appropriate to the pupils' age and family background, if the head teacher of a school feels it is inappropriate to have Christian collective worship, the school can apply for a determination from the local authority to have this requirement lifted.

Parents can withdraw their child from collective worship and pupils in the sixth form can withdraw themselves, if they choose.

The Government does not believe that such a position is incompatible with the provision of faith schools as part of a plurality of provision.

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?

Without the exemption, some parents might claim that the failure to provide equivalent collective worship for other faiths is discrimination or that being subjected to the teachings of another religion is discrimination and schools may be forced to answer such claims in the courts. It is therefore necessary to have the exemption to ensure that schools can continue to provide collective worship in the way legislation requires them to do. There is no intention for schools to be required to provide equivalent worship for children of other faiths, although they are free to do so as resources permit.

51. Are local Standing Advisory Councils for Religious Education permitted to discriminate on religious grounds in their appointments?

Local education authorities are required to constitute a standing advisory council on religious education by section 390 of the Education Act 1996. Section 390 requires SACREs to consist of representatives of Christian denominations and other religions which reflect the main religious traditions in the area covered by the LEA; representatives of the Church of England; representatives of recognised Teacher Associations and representatives of the LEA.

Membership of a SACRE does not, of itself, make the member an employee or officer of a local authority and there are no rules about members being paid for their position. As a result, appointments to the panels would not be covered by Part 5 of the Bill. Since the role of the SACRE is to advise on religious education, the Government considers that the provisions in the Education Act 1996 strike a fair balance in directing how they should be constituted.

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?

In relation to collective worship, the Government believes that collective worship provides the opportunity for pupils to reflect on spiritual and moral issues and to explore the concept of belief. It also offers a unique opportunity to develop and celebrate the school's ethos and establish shared values within the school community.

In relation to RE, Modern RE should be taught in an objective and pluralistic manner, and not as indoctrination into a particular faith or belief. It is important that pupils learn about the concept of religion and belief and the part it plays in the spiritual, moral and cultural lives of people in a diverse society. The Government does not believe that this constitutes a violation of an individual's right, regardless of their age, to express their own religion or belief.

The Government believes that there is sufficient provision to allow for the enjoyment of Convention rights by all pupils. It considers it appropriate for parents to exercise these rights on behalf of their children as their legal guardians and the rightful guardians of their wellbeing, below a certain age, in this case 16. 16 is the age when young people are deemed to have the maturity to assume a number of responsibilities, for example, to determine their own career path in the world of work or further education.

SCHOOL TRANSPORT

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?

The Government believes that the exemption for school transport is still justified because it ensures local authority policies on providing transport are not challenged on religious grounds simply because they decide that it is necessary, in exercising their duty to ensure suitable school travel arrangements, to provide transport to faith schools.

The Government continues to attach importance to the opportunity that many parents have to choose a school or college in accordance with their religious or philosophical beliefs. It is important that local authorities respect parents' philosophical, as well as religious convictions, as to the education to be provided for their children in so far as is compatible with provision of religious education and training and the avoidance of unreasonable public expenditure and that specifically religious beliefs are not given greater status than those which are non-religious, such as atheism.

The guidance to local authorities on the provision of school transport is therefore clear that local authorities should ensure that, where travel arrangements are made for pupils travelling to denominational schools to facilitate parents' wishes for their child to attend on religious grounds, "travel arrangements should also be made for pupils travelling to non-denominational schools, where attendance at those schools enables the children to be educated in accordance with their parents' philosophical convictions, and vice versa." Such philosophical convictions may be "non religious".

The Government does not consider that the continued existence of the exemption encourages authorities to treat those religious and non religious differently.

If the exemption was removed, local authorities could be challenged on discrimination grounds if they provided transport to a particular faith school but they failed to provide transport for pupils at a non-denominational school, in cases where parents wanted their child to attend a particular non-denominational school even in cases where this was for reasons unconnected to their philosophical convictions/beliefs. So, an adverse consequence of removing the exemption could be that local authorities may decide, when exercising their discretion, that it is not necessary to put on buses to faith schools either—so as to avoid potential discrimination claims.

EMPLOYMENT IN RELIGIOUS SCHOOLS

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?

The provisions in schedule 22 for faith schools in relation to appointments are necessary to reflect the very real cultural influence that faith schools have had, and continue to have, in this country. Faith schools were fundamental in the establishment of education in Britain and today they continue to enjoy the respect of many parents—many of whom, religious or not, value the ethos and moral guidance which they offer. This ethos would simply not be the same if faith schools were not allowed flexibility in their arrangements for appointing staff who are of the relevant faith.

The Government believes the exceptions are fully compatible with both the European Convention on Human Rights and Directive 2000/78/EC. Article 4.2 of the Directive sets out a limited derogation for organisations with an ethos based on religion or belief, where being of a particular religion or belief is a genuine occupational requirement. Faith schools are organisations with an ethos based on religion, and that religion can be considered a genuine occupational requirement for much of the work done in them—including some teaching posts and the position of head teacher.

55. Why does the Government consider the exemption to comply with Articles 9 and 14 ECHR?

The Government considers that preserving the religious character and ethos of faith schools meets a legitimate aim and supports its commitments under Article 9 and Article 2 of Protocol 1. The system in the UK is based on choice—no parent is ever obliged to choose a faith school and no child will miss out on an education if they do not qualify for a local faith school. In order to maintain that choice, it is the Government's policy that schools should exist which are able to provide education within a particular religious framework.

As noted above, plurality and diversity in a State's education system support the right of parents to have their children educated in accordance with their philosophical convictions. They also support the rights of those who wish to teach and learn in schools with a particular religious character. The Government considers that the provisions of the School Standards and Framework Act, which will not be affected by this Bill fulfil these aims without contravening Article 9 read with Article 14.

PART 8—PROHIBITED CONDUCT: ANCILLARY

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?

The Government considers that the provisions of the Bill are fully compliant with the European Court of Justice decision in relation to Firma Feryn.

The Bill prohibits direct discrimination, where someone is treated less favourably than another because of a protected characteristic. This covers the situation where someone is deterred from applying for a job, as in essence happened in the Firma Feryn case, or from taking up a service because of a discriminatory advertisement. The Bill also prohibits indirect discrimination, with the wording of clause 18 covering the situation where someone is deterred from applying for a job or from taking up a service because of a discriminatory practice. This is made clear in the Explanatory Notes and will also be set out in guidance. The Government does not therefore see the need to have separate provision in the Bill on these issues purely for clarificatory purposes, particularly given the drafting principle that nothing superfluous should be included in legislation. Although the Bill does not include separate provisions for the prohibition of discriminatory practices and advertisements, as provided in current legislation, the amendment to the Equality Act 2006 (in Schedule 26, paragraph 13) will extend coverage of the Equality and Human Rights Commission's enforcement powers to include direct and indirect discrimination across all the protected characteristics.

PART 9—ENFORCEMENT

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)?

Whilst people are entitled not to be discriminated against, their rights need to be balanced against national security interests. The Government recognises that excluding a claimant, representative or assessor from any part of the proceedings and maintaining secrecy about the reasons for a decision is a special procedure. This is why clause 111 also makes provision for a claimant or representative who has been excluded to make a statement prior to the proceedings; and for a special advocate to be appointed to represent his or her interests where necessary.

The clause also expressly limits the ability of the court to exercise these powers to exclude a claimant and to keep part of the reasons secret, to situations where the court thinks it is expedient to do so in the interests of national security. There is no blanket power to take these steps.

The Government believes the measures provided for in this clause maintain access to justice whilst preventing the disclosure of sensitive information which could be damaging to national security.

58. Please explain the justification for excluding certain bodies from this enhanced power of Tribunals to make recommendations.

The Security and Intelligence Agencies are exempt in relation to the Bill's extension of the power of employment tribunals to make recommendations to benefit the wider workforce. The nature of the Security and Intelligence Agencies' work means that they are under operational and statutory restrictions about the information they may disclose. It is unlikely therefore that the tribunal would have heard sufficient evidence about wider employment practices to reasonably conclude that there were broader problems of discrimination and therefore make an appropriate recommendation. The Government has therefore decided in this instance to restrict the power of the tribunals to make recommendations that benefit the individual claimant only.

59. Why will the extended powers to make recommendations not be applied to equal pay cases?

This would be a significant change to equal pay law and it is necessary to be clear what the possible effect would be, before deciding whether or not to legislate. Evidence exists on how recommendations are currently used in discrimination cases, but there is no such evidence of how they could be used in equal pay cases. The Government considers that further work is required in this area.

Employment tribunals already provide lengthy and detailed comments when responding to equal pay cases. In addition, if an employer is found in breach of equal pay law it is assumed that it will, as a matter of common sense, want to assess what changes may be required in order to avoid further claims. The Government therefore needs to assess in more detail the additional value that allowing tribunals to make recommendations in this area would add.

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?

The Government recognises that there are situations in which a number of individuals may wish to bring broadly similar discrimination claims against a single party.

However, because representative actions would be a new departure for Great Britain, the Government considers it important that the possible impact be fully explored, before deciding whether or not to legislate.

Work is being undertaken by the Ministry of Justice to analyse the findings of the review undertaken by the Civil Justice Council on the case for introducing representative actions, which was published at the end of 2008. The Government Equalities Office has also commissioned independent research, which will look at whether the recommendations made by the Civil Justice Council are applicable to discrimination and equal pay cases in the employment tribunals. Any proposals for reforming this area of the law would be subject to a consultation.

PART 11—ADVANCEMENT OF EQUALITY

PUBLIC SECTOR EQUALITY DUTY

61. Please explain why each exception to the public sector equality duty is necessary and proportionate.

Marriage and civil partnership exception

The Equality Duty will require public authorities to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation on the grounds of marriage/civil partnership, because the first limb of the duty extends to all prohibited conduct.

However, the Bill does not require public authorities to have due regard to the need to advance equality of opportunity on the grounds of marriage/civil partnership, nor to foster good relations between married people/people in civil partnerships and others. That is because a) the Government has not seen any evidence of disadvantage suffered by married people/people in civil partnerships; b) any such disadvantage that may exist could be better dealt with through the other strands (for instance, homophobic abuse or belittlement of civil partnerships would be dealt with through fostering good relations on the sexual orientation strand); and c) it could unhelpfully distract public authorities from tackling other, long-standing, inequalities.

Children

Schedule 18 has an exception from the Equality Duty for the provision of education and services to pupils in schools and the provision of certain services in children's homes and in relation to other accommodation provided to children on the grounds of age.

Public authorities will need to consider how to eliminate discrimination and advance equality of opportunity for people of all ages, including children. This might mean, for instance, local authorities making sure swimming pools and leisure centres are accessible for children as well as adults, or local councils thinking about whether their bus services adequately cater for children.

But the Duty will not require public authorities to have due regard to the need to advance equality of opportunity for children of different ages in the provision of education and services to pupils in schools or in relation to children's homes. The Government does not consider that such a duty would make sense in an environment which is based on treating children of different ages differently; and it could distract schools from the serious issues of advancing race, gender, disability or sexual orientation equality for instance.

Immigration

The Bill has an exception for immigration functions in respect of race, religion or belief and age. As far as race is concerned, this simply replicates what was included in the Race Relations Act because the application of the immigration and nationality legislation necessarily involves denying opportunities to some people on the basis of their nationality which are offered to others. The Government considers it necessary to extend the exception to age since many immigration functions rely on distinctions between individuals according to age; and to religion or belief since advancing equality of opportunity on these grounds could be incompatible with essential operational decisions in particular circumstances.

Authorities excepted from the Equality Duty

The House of Commons, the House of Lords, the Scottish Parliament, the National Assembly for Wales, the General Synod of the Church of England, the Security Service, the Secret Intelligence Service, the Government Communications Headquarters, and any part of the armed forces which is, in accordance with a requirement of the Secretary of State, assisting the Government Communications Headquarters are excepted from the scope of the Duty.

Although it is not intended to list these bodies in Schedule 19 as subject to the Equality Duty, there needs to be an exception to prevent them from being pulled into the scope of the Equality Duty as a consequence of their exercise of a public function.

These exceptions replicate the current exceptions in the disability and gender equality duties.

The first five bodies are excepted because the Government has no wish to fetter the legislative independence of Parliament, or the Scottish Parliament or Welsh Assembly, or the Synod. The Government is conscious of the need to respect Parliament's historic right to regulate its own affairs. There is an exception for the security services on the grounds of national security.

There are also exceptions from the Equality Duty for functions in connection with proceedings in the House of Commons, the House of Lords, the Scottish Parliament and the National Assembly for Wales. This is to exclude areas directly connected with the preparation of legislation. There are also exceptions for judicial functions and functions exercised on behalf of, or on the instructions of, a person exercising a judicial function. These exceptions are necessary to ensure the impartiality of the judicial process. We are currently reviewing whether, for similar reasons, we need an exception for decisions to institute or continue criminal proceedings.

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?

A public authority for the purposes of the Equality Duty is an organisation listed in schedule 19. Academies are not, at present, listed—but the Government intends to consider including academies as subject to the Duty when the schedule is updated following Royal Assent.

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?

Yes. The Government believes, and the law already states, that public services which are being delivered to the whole of the community should be delivered in a fair and non-discriminatory manner—as indeed, the majority of religious organisations are already doing. Some public authorities may choose to use multiple suppliers to meet the different requirements of different sectors of the community. In those situations, religious organisations may make use of certain limited religious exceptions. The point remains, however, that the public authority (on whom the Duty falls) will need to ensure that it does not discriminate in carrying out its functions and will need to have due regard to the need to advance equality of opportunity for all the protected groups; so if it uses a religious organisation to provide services as a means of performing its functions, that organisation must either do so even-handedly or, if the organisation chooses to make use of exceptions, the public authority must ensure that it provides equivalent services to people of other religions and none.

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?

The duty is aimed at helping individuals, not groups or organisations—so there will be no requirement for public authorities to advance equality for religious organisations. Public authorities should consider whether adherents of particular religions have different needs when it comes to accessing public services that could be contributing to adverse outcomes, for instance in health or education. They should think about whether individuals are experiencing disadvantage linked to their religious beliefs; and they should think about whether adherents of particular religions are underrepresented in particular spheres, including in public life. If there is evidence of need, then it is right that public authorities should think about whether there is any action they could or should take to tackle that.

It may be that public authorities seek to involve religious groups or other religious and non-religious representatives when they are setting their priorities for action under the Equality Duty. It may also be the case, as now, that public authorities choose to contract out the delivery of some public services to voluntary organisations or religious organisations—either in respect of all the community, or in respect of certain parts of the community. However, the Duty is not designed to encourage the provision of separate services to different groups, unless the evidence points to a particular need in that area. The Government expects it to result in more inclusive services which meet the needs of all.

Following the 2007 consultation paper on proposals for the Bill, the Government discussed further, and with religion or belief groups in particular, but also women's groups, other stakeholders, and public authorities, whether to apply the "advancing equality of opportunity" limb to religion or belief. The Government believes it is right to extend the Duty in this way, to help address the adverse outcomes some people experience as a result of their religious beliefs; and because a failure to extend the Duty would have resulted in a hierarchy of inequality in the Duty. Most of the public sector organisations consulted did not foresee any practical difficulties in including religion or belief; and the majority of stakeholders supported its inclusion.

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?

There is evidence to show that many public authorities are already incorporating equality considerations into their procurement criteria. The Government wants this good practice to become part and parcel of how public bodies carry out procurement.

Under the public sector Equality Duty contained in the Equality Bill, Government is proposing there should be specific duties on furthering equality through procurement for those public authorities classed as contracting authorities under the Public Contracts Regulations 2006. Government is currently consulting on proposals for specific duties. One specific duty being considered is whether, as part of a contracting authority's process of setting its equality objectives and plans for achieving them, the authority will be required to set out in detail how it will ensure that equality factors are considered in its procurement activities. The Government is also considering two further specific duties that will require contracting authorities to consider the use of equality-related criteria at award stage, where it is relevant to the subject matter of the contract; and to consider incorporating equality-related contract conditions where they relate to the performance of a contract and are proportionate. The extent to which equality considerations can be included in the process will depend upon the nature of the contract, but the duty will ensure it is considered in the first place.

On the second part of the question, the answer is yes. The existing legislative framework which regulates public procurement permits public authorities to give weight to equality considerations when awarding contracts in that:

(a) The procurement process prescribed by Directive 2004/18/EC, as implemented by the Public Contracts Regulations 2006, is designed to ensure fair and open competition and, therefore, the equality of tenderers. They specifically provide that:

— suppliers that have breached relevant laws and practices may be rejected, as well as those who lack the requisite technical and/or professional ability to perform a contract—for example, this could permit the exclusion of candidates who have seriously breached discrimination laws and suppliers who are unable to meet an authority's requirement to answer questions from service users with little or no English when providing the service;

— when awarding a contract based on the most economically advantageous tender a contracting authority must use criteria linked to the subject matter of the contract and this can include assessing the quality of the tender—if a contract includes the provision of services for people with disabilities a contracting authority can take into account the extent to which a candidate's tender meets the needs of such users; and

— contract conditions may, in particular, include social and environmental considerations—for example, a contract to manage a contracting authority's recruitment function may include a condition that all jobs must be advertised on either a part-time basis and/or with flexible working provisions unless there is a justified business case why a particular job cannot be offered with these terms.

(b) Public authorities must comply with all equality legislation in awarding contracts, so must not discriminate on grounds of sex, race, religion or any other prohibited grounds;

(c) Where the subject matter of the contract involves equality considerations eg a contract to provide services in a diverse community where numerous languages are spoken, a contracting authority may include language skills and cultural awareness as one of the award criteria. The amount of weight to be given to equality will differ depending on the circumstances, specifically the relevance of equality to the services to be performed. For example, in a contract for paper and pencils, equality is unlikely to be relevant and therefore should not be used as an award criterion.

Further information and guidance on the possibilities for taking equality into account at the award stage of a procurement can be found on Page 16 of the OGC guide: Make Equality Count (http://www.ogc.gov.uk/documents/Equality_Brochure.pdf)

POSITIVE ACTION MEASURES

66. Does the wording of Clause 153(4) fully reflect the scope for positive action permitted by EU law? If not, why not?

Clause 153(4) is drafted to ensure employers have the flexibility to address disadvantage or under-representation in the workplace, but at the same time ensuring that employers do not adopt blanket measures which may be discriminatory to people without those protected characteristics. These provisions are in line with EU law which allows member states to maintain or adopt specific measures to prevent or compensate for disadvantages linked to protected characteristics.

Clause 153(4) strikes a balance between providing the opportunity to address under—representation against ensuring candidates without any protected characteristics to have the merits of their application considered. The effect of this clause is that it does not permit employers to have a policy of routinely treating people who are from under-represented groups more favourably than those who are not. The Government considers that clause 153(4) reflects the scope for positive action as permitted by EU law.

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?

The provisions in Clause 152 establish a framework in which employers could use any form of positive action to address disadvantage or under-representation in their workforce. The use of these measures is entirely voluntary and many domestic businesses recognise the benefits of using these measures to attract new business, fill skills gaps, create a more diverse workforce and better understand and meet customers' needs.

The provisions in Clause 153 relate solely to matters of recruitment and promotion. The provisions in clauses 152 and 153 complement each other, rather than being mutually exclusive—the provisions in clause 153 could be used to support or supplement any positive action initiatives taken under clause 152.

Therefore, the Government does not see that the provisions in Clause 153(4) may discourage employers from making use of the more general positive action provisions contained in Clause 153. It is planned that comprehensive guidance will be issued by the Equality and Human Rights Commission covering use of the positive action provisions.

PART 14—GENERAL EXCEPTIONS

RESTRICTIONS ON FOREIGN NATIONALS

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?

The great majority of posts in the Civil Service (some 95 per cent) are open to nationals of the following countries or associations of countries—United Kingdom (UK); Republic of Ireland; the Commonwealth; the European Economic Area (EEA); Switzerland and Turkey. Certain family members of EEA, Swiss and Turkish nationals can also be deemed eligible irrespective of their own nationality. The Government took a positive step through the European Communities (Employment in the Civil Service) Order 2007, which set out the criteria by which posts can be reserved for UK nationals, to open as many posts to all eligible nationals as was operationally possible rather than maintaining quite as many for UK nationals only.

However, there still remains a need which is recognised in existing legislation and which the Equality Bill replicates, to reserve certain particularly sensitive posts in the civil, diplomatic, armed or security and intelligence services and by certain public bodies, to persons of particular birth, nationality, descent or residence. This is because the posts are assumed to be of a nature—for example; security and intelligence services—that requires a loyalty or allegiance to the Crown that is presumed to be greater in the case of a person who is a UK national.

NATIONAL SECURITY

69. Why does the Government consider it to be necessary to maintain such wide-ranging exceptions in the field of national security?

Clause 185 of the Equality Bill replaces and harmonises the exceptions for national security in current discrimination legislation, narrowing those in section 52(1) of the Sex Discrimination Act 1975 and section 59(3) of the Disability Discrimination Act 1995.

The Government believes that this exception is necessary to ensure that national security is not compromised. However, the Government accepts that national security cannot provide a blanket excuse for discrimination or other prohibited conduct. Consequently, the exception in clause 185 is worded so that an act done to protect national security is not automatically exempt. The action taken must be proportionate to that purpose.

In addition, if an individual believes that any of the intelligence and security agencies has discriminated against him/her in the exercise of its functions, he/she may make a complaint to the Investigatory Powers Tribunal (established under the Regulation of Investigatory Powers Act).

CHARITIES

70. Has the Government given consideration to restricting the circumstances in which charities will be able to discriminate on the basis of protected characteristics?

See question 71.

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?

Since questions 70 and 71 are similar, it appears convenient to answer them together.

The Government has given consideration to restricting the circumstances in which charities will be able to discriminate on the basis of protected characteristics. These circumstances are being restricted further through the Equality Bill. At the moment, most of the exceptions for charities mean that they can discriminate simply if their charitable instrument allows this. The Bill's proposals mean that a charity would also need to show that it was justified in discriminating. This is currently the case only for single-sex charities.

Under clause 186, any charities benefiting only people who share a protected characteristic, such as people of the same religion or belief, will not be able to discriminate on the basis of that protected characteristic when delivering public or any other services just because their charitable instrument provides for this. They will also need to show that such discrimination is objectively justified or intended to prevent or compensate for disadvantage linked to the protected characteristic in question. It will ultimately be for the courts to decide whether one of those additional tests is met.

The Bill also narrows the existing exceptions for single-sex charities and charities benefiting only people of a racial group so that these no longer apply to discrimination on the basis of sex or nationality, respectively, in relation to employment or vocational training. It retains the bar on charities defining beneficiaries by reference to the colour of their skin.

RELIGIOUS ORGANISATIONS

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?

Religious organisations providing public services are subject to the requirements of discrimination law in the same way as other organisations, save for the limited exceptions designed to ensure that a person's right to hold and manifest a religious belief is not interfered with. These exceptions in the Equality Bill replicate the effect of provisions in Part 2 of the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007.

The 2007 Regulations contain a "carve-out" from the religious organisations exception for any organisation acting on behalf of a public authority. This is because, while the Government is sensitive to people's religious beliefs, in circumstances where public money is being used to fund a service the Government takes the view that the service should be provided to people irrespective of their sexual orientation.

On the other hand, it is recognised that there are organisations whose purpose is to provide benefits to people of particular religions. These can provide valuable services to particular sections of the community. Accordingly, the Government does not consider that a similar provision is necessary in relation to religion or belief. This does not affect the general position that public authorities should not discriminate in relation to any of the protected characteristics in the services they provide or the functions they exercise.

MISCELLANEOUS

PURPOSE CLAUSE

73. Has the Government given consideration to including a purpose clause in the Bill and, if so, why has it rejected it?

The Government made very clear, when publishing its response to the consultation on the Bill, why it does not think that a purpose clause is a good idea. It completely shares the presumed objective of those who want purpose clauses—which is to have legislation that is clear. But it does not believe that a purpose clause in this Bill would make it clearer. In fact, it could quite easily have the opposite effect.

As a general rule, purpose clauses tend to be unwise. Statements of fundamental principle or purpose are necessarily imprecise and inflexible, and inevitably risk making the law uncertain and confusing. Users with competing views and aims will ask the courts to construe the principles in different ways, and there is no reliable way of predicting or controlling the construction or ensuring that it matches the original legislative intention. These reservations are supported by the views expressed by former first Parliamentary Counsel, Sir Geoffrey Bowman in the evidence he gave to the House of Lords Select Committee on the Constitution in 2004:

103

It is for these reasons that genuine purpose clauses are very rare in domestic legislation, Most of the provisions cited in support of a purpose clause in the Bill are not in fact purpose clauses but have more specific aims (thus clause 3 of the Equality Act 2006 is in reality a statement of the objectives of the Commission for Equality and Human Rights, not the purpose of the Bill; section 1(1) of the Children Act 1989 imposes a duty on the courts to act in the best interests of the child).

The Bill is aimed at simplifying and clarifying the law. Whatever the good intentions of those who advocate a purpose clause, including one in the Bill would therefore run the risk of undercutting many of the Bill's benefits by introducing uncertainty, and making it far more difficult to apply on the ground. That uncertainty would inevitably lead to litigation, which would be unlikely to be resolved at first instance and could well lead to unexpected or undesired results. This is because there would be an inevitable tension between the general propositions in the purpose clause and the specific provisions of the substantive parts of the Bill.

It should also be noted in this context that the Bill will already need to be interpreted in accordance with Convention rights (including Article 14), as a result of the Human Rights Act. In addition, given that much of the Bill is based on European legislation, the courts will also need to interpret it consistently with European law. It is difficult to see what additional help a further layer of interpretative principles would give to the courts, particularly since it would inevitably have to be subordinate to the need to interpret it consistently with both the Convention and EU legislation.

It is for these reasons that including a purpose clause in this Bill would be particularly problematic, and this is why, after careful consideration, the Government decided not to adopt that approach.

VOLUNTEERS

74. Do volunteers receive adequate protection against discrimination or is additional specific provision to this effect required in the Bill?

The diverse nature of volunteering and the varied relationships between volunteers and the organisations that engage them mean that equality legislation does not apply to volunteers in the same way as employees. However, volunteers are currently protected from discrimination in so far as they qualify as employees and insofar as they are recipients of goods facilities or services provided to the public. These provisions will be retained in the Equality Bill and be extended to cover age.

96 Directive amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions Back

97 Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services Back

98 Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) Back

99 Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Back

100 Directive establishing a general framework for equal treatment in employment and occupation Back

102 [2008] UKEAT 0123 08 2011 (20 November 2008) Back

103 Minutes of Evidence, 23 June 2004, response to Q 338. Back



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