Annex
EQUALITY COMPATIBILITY
1. In your view, would a similar provision
to section 19 HRA, certifying a Bill's compatibility with
equality, be helpful in ensuring that Government considers the
human right to equality with the necessary rigour when drafting
new legislation?
I find it difficult to see what value a requirement
for a declaration of compatibility with "equality" for
new Bills would add to the existing process. Under section 19 of
the Human Rights Act 1998 (HRA), a Minister must already
certify that any new Bill is compatible with Convention rights
including, of course, with Article 14 on the prohibition
of discrimination in enjoyment of other rights under the Convention.
Compatibility with the "human right to equality", as
this is set out in Article 14, is therefore already a requirement.
In addition, in line with the current public
sector equality duties the Government assesses the impact of primary
legislation and major policy decisions on race, gender, and disability
equality. The Equality Duty, to be introduced by the Equality
Bill, will require public bodies to assess the impact of their
activities on the protected characteristics of race, age, disability,
gender, gender reassignment, sexual orientation and religion or
belief. The proposed new specific duty in this area would require
certain of those public bodies to demonstrate how they have taken
into account evidence of the impact on equality in the design
of key policy and service delivery initiatives. I am not clear
what a statement of compatibility with "equality" would
add to this.
The issue of a constitutional equality right
or guarantee beyond what is required by Article 14 has been
considered by the Government in some detail, and was discussed
at length during the Commons Committee stage of the Bill. As I
made clear then [Hansard 7 July 2009, columns 706-732] and
in my response to your previous letter (see the answer to question
20) there are significant issues that would need to be worked
through in relation to both the content and effect of any such
a right, should it be decided that one would be desirable.
These issues are best discussed in the context
of the national conversation initiated by the Green Paper "Rights
and Responsibilities: Developing our constitutional framework"
which was published in March. We made clear in that context that
we would like the widest possible public engagement on the range
of issues that might be included in a future Bill of Rights. We
also made clear that very careful thought would need to be given
to whether, and in what circumstances, any rights, such as a right
to equality, would be justiciable, and be clear how these would
impact on the clear legal obligations imposed and rights given
by the Equality Bill.
With this in mind, the question of what should
be done to ensure that sufficient weight is given to any statement
of equality, including whether an appropriate mechanism might
be Ministerial statements of compatibility or provisions mirroring
those provisions of the HRA mentioned in your second question
below, is not one that can be meaningfully answered in the abstract
at this stage.
2. Has the Government considered including
in the Bill an interpretive obligation equivalent to section 3 HRA,
so that all other legislation must be interpreted compatibly with
the Equality Bill (or the right to equality) so far as it is possible
to do so? If so, what are the Government's reasons for rejecting
that approach? Please also explain the Government's position on
whether to include equivalent provisions to sections 4 and
6 HRA within the Equality Bill.
You will no doubt be aware that, like the "section
19" approach discussed above, the question of whether to
mirror sections 3, 4, and 6 of the HRA was also considered
in some detail in the Committee debate referred to above.
As far as an obligation to interpret legislation
consistently with the Equality Bill is concerned, I am not clear
what that would amount to in practice, over and above normal rules
of statutory interpretation. While I can see the merits of the
section 3 HRA approach in the context of Convention rights,
the desirability of applying it to the detailed provisions of
the Equality Bill is less obvious. It will already be the case,
for instance, that if there is no applicable statutory authority
exception to, say, the Bill's prohibition on direct discrimination,
any reliance on a current or indeed future statutory provision
in defence of a claim for direct discrimination will almost certainly
fail.
Likewise it is difficult to see what value would
be added by mirroring sections 4 and 6 of the HRA in
relation to the Equality Bill itself. To the extent that the Equality
Bill implements European law, there are already mechanisms whereby
courts can deal with other domestic law that might deprive people
of their rights under the relative directives and treaty provisions.
In addition, it is worth noting that the Bill will give rise to
direct remedies against public authorities that provide services
to individuals or perform public functions that affect them.
Further I should note that public authorities
will also be obliged to act in accordance with the Equality Duty,
which sets out in detail what is required of them in regard to
promoting equality and eliminating discrimination. Failure to
comply with that duty will potentially lay them open to claims
for judicial review, and also possible enforcement action by the
Equality and Human Rights Commission. We would not want to change
those arrangements, or open them to possible challenge and confusion,
without careful consideration of the consequences.
As I noted in my answer to question 1 above,
the question of what means should be adopted to ensure that any
constitutional statement of equality that might be adopted is
taken sufficiently seriously is something that needs to be looked
at in the context of the debate on whether such a right is desirable,
and if so what its content and effect should be. This point applies
as much in relation to whether or not to include something analogous
to sections 3, 4 and 6 of the HRA in support of such
a statement, as it does to a requirement to make declarations
of compatibility.
MULTIPLE DISCRIMINATION
3. If the Government decides, follow its consultation,
to legislate to prohibit direct discrimination in relation to
only two protected characteristics, and not to allow claims on
multiple grounds for indirect discrimination and harassment, will
it commit to reviewing the operation of the legislation within
two years of it coming into force to see whether further extension
is required?
As you will be aware, provision for dual discrimination
has now been introduced into the Equality Bill by way of a Government
Amendment, enabling claims of direct discrimination to be made
combining two relevant protected characteristics. The provision
is based on careful consideration of all the evidence presented
during the six-week discussion period we held recently and throughout
the process of consulting on the Bill with all interested parties.
As I explained during the Committee session on Thursday 2 July,
there has been insufficient evidence of the need to extend the
provision beyond that which has been proposed.
The Equality and Human Rights Commission is
charged with the duty to monitor the effectiveness of equality
law and that duty will extend to the Bill once enacted. The Government
Equalities Office will continue to ensure that the Commission
meets its obligations under the Equality Act 2006, and that due
priority is given by the Commission to the implementation and
monitoring of the Equality Bill when it is enacted.
In addition to this and other forms of post-legislative
review such as internal review or through the Impact Assessment
process, the Government established a new system in March 2008 for
promoting the post-legislative review of Acts, by which the responsible
Department will, within three to five years after an Act has received
Royal Assent, submit to the relevant Commons departmental Select
Committee a Memorandum reporting on certain key elements of the
Act's implementation and operation.
If any new evidence comes to light which indicates
that there is a need for extension of the dual discrimination
provision to indirect discrimination or harassment or in respect
of combinations of more than two relevant protected characteristics,
the Government will of course consider this at the appropriate
time.
EDUCATION: CURRICULUM
4. What is the justification for exposing
a gay student to being taught that their sexual orientation and
relationships with people of the same sex, are sinful?
I must point out that the curriculum exception
is not in place simply to protect faith schools as your question
implies, but is in place to protect all schools from possible
claims which may arise from people who feel that they are being
discriminated against simply by the inclusion of subjects or ideas
with which they disagree and find offensive—and this is
certainly not limited to religious views on single-sex relationships—in
faith schools or otherwise.
Explaining such views in schools is only one
aspect of the curriculum which could have the implication of leaving
schools open and vulnerable to unwarranted challenge. Use of certain
texts (and non-use of certain texts), scientific theories on evolution,
mixed P.E lessons, use of computers could all be challenged under
discrimination law under a range of protected characteristics
without the exception.
It is essential that schools are able to maintain
their academic freedom and deliver a broad-based and diverse curriculum
in accordance with DCSF curriculum guidelines and to do that they
must be free from the chilling effect of fear of discrimination
claims for everything they teach.
With regards to your specific question about
the ramifications of faith schools being able to deliver sex and
relationship education in a way consistent with their ethos, as
I explained in my original response, their ability to do this
does not therefore mean that schools are justified in teaching
to a gay student that their own sexual orientation or single-sex
relationships are a sin, as you imply.
I set out that schools cannot present their
views in a hectoring or bullying way which may be harmful or offensive
to individual pupils. Singling out of individuals for criticism
in such a way would not be an appropriate way for a teacher to
behave and is likely to constitute less favourable treatment (and
therefore discrimination) in the provision of education. Such
actions could not benefit from the curriculum exception. The curriculum
exception would allow a teacher to say that a particular religion
takes a particular view of sexual orientation, but it would not
allow a teacher to pick on or single out an individual pupil because
of that pupil's own sexual orientation.
Issues such as single sex relationships and
religious views on that subject should be presented by schools
in ways which would not be offensive to individuals or single
out any particular pupils for criticism. Such explanations would
have to be in an educational context and setting—for example
in a religious education lesson.
We certainly would not expect schools to subject
gay pupils to such criticism through inappropriate teaching, which
I have already said is likely to constitute discrimination, but
neither would we wish schools to be the subject of possible claims
of discrimination for explaining aspects of their religion, with
which some people disagree, in a perfectly appropriate way and
in an educational context.
That is one of the reasons why the curriculum
exception is in place; however, as I pointed out at the beginning
of the answer to this question, the curriculum exception is in
place for far more wide-reaching reasons than religious views
on sexual orientation.
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