Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents

Memorandum submitted by Discrimination Law Association

  The Discrimination Law Association ("DLA") is a membership organisation established to promote good community relations by the advancement of education in the field of anti-discrimination law and practice. It achieves this by, among other things, the promotion and dissemination of advice and information; the development and co-ordination of contacts with discrimination law practitioners and similar people and organisations in the UK and internationally. The DLA is concerned with achieving an understanding of the needs of victims of discrimination amongst lawyers, law makers and others and of the necessity for the complainant-centred approach to anti-discrimination law and practice. With this in mind the DLA seeks to secure improvements in discrimination law and practice in the United Kingdom, Europe and at an international level.

  The DLA welcomes the opportunity to make a brief submission to the Joint Committee on Human Rights in relation to the Committee's pre-legislative scrutiny of the Equality Bill.

  As the Committee will be aware, the Equality Bill in very broad outline was announced in today's Queen's Speech. In July this year the Government Equalities Office published "The Equality Bill—Government Response to the Consultation", which provided some indication of some of the content of the Equality Bill and identified some matters on which further discussion or consultation was proposed. Many important elements which the DLA would expect to form part of the Equality Bill are not yet in the public domain, making it difficult for the DLA, or others making submissions at this time, to be able to identify specific provisions that may raise significant human rights issue.

  We set out below some provisions we anticipate will be included in the Equality Bill which could raise human rights issues and ways in which we believe the Bill could do more to enhance human rights.

  We note at the outset that, while equality has been a core element within human rights for at least sixty years, in the UK there has developed a curious dichotomy with human rights perceived as primarily civil and political rights—with the European Convention on Human Rights (ECHR) being the main point of reference—and equality—as embodied in the equality enactments—relating primarily to social and economic rights. All indications are that the Equality Bill will, again, focus primarily on equality within social and economic fields, leaving barely touched protection against discrimination in relation to civil and political rights. Further, as one aim of the Equality Bill is to harmonise and consolidate existing equality enactments, there is a real prospect that the Bill will re-enact explicit exclusion from protection against discrimination of areas involving important civil and political rights.

  One of the DLA's main concerns is the apparent absence in proposals for the Equality Bill or otherwise in the government's legislative programme of measures to ensure that victims of discrimination will have real and effective rights to seek legal redress, which they will be able, in practice, to exercise. This gap raises directly the right to a fair trial "in the determination of … civil rights" as provided under Article 6 of the ECHR and Article 14 of the UN International Covenant on Civil and Political Rights (ICCPR). Discrimination law is increasingly complex, and it is unrealistic to expect victims of discrimination, many of whom may have physical or mental impairments or may have difficulty understanding English, to bring legal proceedings unassisted. Our concern, and that of a wide range of advice agencies, stems from the restrictions on public funding for discrimination cases and the stated policy of the Equality and Human Rights Commission (EHRC) to assist a limited number of cases regarded as strategic, and rarely at first instance.

  It is anticipated that the prohibition of discrimination in respect of public functions that currently exists will be included in the Equality Bill. We are concerned that the Bill will also retain the current exceptions, thereby excluding protection against discrimination in respect of any of the security services agencies, judicial functions or anything done on behalf or on instructions of a person exercising judicial functions, anything done to reach a decision not to prosecute and critical immigration control functions. Questions relating to civil and political rights guaranteed under the ECHR and other international human rights instruments, which also guarantee a right to equality in the enjoyment of these rights, may well arise in these areas. The DLA submits that, instead of the current partial coverage, protection against discrimination in respect of the full range of civil and political rights protected under the ECHR should be included in the Equality Bill, especially as the UK continues to decline to ratify Protocol 12 to the ECHR.

  The government has indicated its intention to retain a very long list of exceptions to the prohibition of discrimination. The DLA is concerned that the provisions within current legislation prohibiting discrimination on grounds of religion or belief that permits wide scope for discrimination both in relation to employment and provision of goods, facilities and services and use of premises will again form part of our law. Of even greater concern is the prospect that the Equality Bill will incorporate the exception in the Employment Equality (Religion or Belief) Regulations 2003 that enables section 58 to 60 of the School Standards and Framework Act 1998 to over-ride prohibition of discrimination on grounds of religion or belief in relation to employment in faith schools and the provisions in Part 2 of the Equality Act 2006 (section 52(4)(k) in relation to the curriculum in faith schools (potentially allowing the teaching of prejudice in relation to other faiths or different sexual orientations), admissions or transport arrangements for such schools. The DLA submits that before the Equality Bill is finalised there is urgent need to consider whether the forms of privileging of religion or belief over equality in the current legislation reflects the right balance between the right to freedom of belief and the right to equality on all of the protected grounds.

  The rights of all persons to participate equally and fully in the conduct of public affairs are enshrined in many of the international human rights instruments. In the UK a major barrier to participation in political affairs has been shown to be discrimination by political parties. (See, for example, Ahsan—v—Watt[126]). The government has not indicated an intention to ensure that all activities of political parties are within the scope of the Equality Bill's anti-discrimination provisions, which the DLA has recommended. This could then enable appropriate positive action by political parties to increase participation of persons within any or all of the protected grounds.

  It has long been recognised in human rights instruments that o achieve real and substantive equalityspecial measures are needed. Thus we find explicit reference to positive action equality measures in ICERD and CEDAW, International Convention on the Rights of Persons with Disabilities (CRPD) and ILO Convention 111 and implicitly within General Comments on ICCPR (see General Comment 18, 37th Session) and for example Fact Sheet No.16 regarding ICESCR. All such instruments make plain that special measures to overcome historic disadvantage are not discrimination; they also state that special measures should not lead to the maintenance of separate rights for different groups and must be discontinued after their objectives have been achieved. The government's proposals for positive action are not yet known, especially for areas outside the field of employment. Under ICERD, States Parties have a duty to take special measures "to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms"; consideration should be given to the inclusion of a provision along these lines as part of the public sector equality duty that is to form part of the Equality Bill.

  The DLA is especially concerned that however the Equality Bill will deal with age discrimination in areas such as provision of goods, facilities and services, education, use of premises and all other functions of public bodies, the government has stated that protections will apply only to persons over 18. So far as we are aware, none of the international human rights instruments includes an age bar, and we would expect that instruments with a broad coverage would always be interpreted to guarantee the rights of all persons regardless of age. Further, the EU Charter of Fundamental Rights and the CRPD specifically address rights of children. The Convention on the Rights of the Child (CRC) applies to a wide range of civil and political and economic and social rights that are, or arguable should be, within the scope of the Equality Bill, including health, education, treatment as a refugee, non-exploitation, arrest, detention as well as specific prohibition of harassment.

  As the Committee will be aware, the current position regarding statutory protection from harassment on grounds of religion or belief is inconsistent, with harassment as a separate unlawful act where it arises in the context of employment or further or higher education, but challengeable only as a form of direct discrimination, requiring comparator, where it arises in any other context. Further, since protection against discrimination on grounds of sexual orientation outside employment and further or higher education was introduced by regulations under the Equality Act to mirror provisions relating to religion or belief, this dual approach also applies to harassment on grounds of sexual orientation. So far as we understand, the government is not inclined to deviate from the current position, especially in relation to religion or belief, in the Equality Bill. This may be only a temporary problem, however, if the proposed EC Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation is approved in its current form, as this would require harassment on all four of these grounds to be explicitly prohibited. The DLA submits it should not be necessary to wait for EU legislation to resolve this matter. It is clear that from a human rights perspective, as well as a perspective of rationality or legislative clarity and certainty, the present position is unsatisfactory. We are unable to see any real basis for different form of regulation for harassment in activities outside the workplace compared to harassment at work.

  The fact that discrimination occurs on more than one ground is recognised in many of the international human rights instruments, for example, CRC, CEDAW (see Concluding Comments of the Committee on the Elimination of Discrimination Against Women: UK, 18 July 2008 re ethnic minority women) and the CRPD. Nevertheless the government appears to be reluctant to incorporate discrimination on multiple grounds in its definitions of discrimination and harassment, regardless of the fact, as has been presented to them on many occasions, that this is the reality for many people.

  UK anti-discrimination legislation has never given primacy to protection against discrimination over other legislation, including secondary legislation and ministerial orders. Certain amendments have been necessary in recent years, to give effect to requirements in the EU anti-discrimination directives which require all laws contrary to the principle of equal treatment to be abolished. However, as the government appears to be unwilling to incorporate a purpose clause into the Equality Bill which could signal the fundamental importance of equality, it is likely that the Bill will fail to heed the obligations under ICCPR. Art. 4 ICCPR enables States Parties in time of extreme public emergency threatening the life of the nation to derogate from certain of their obligations under that Covenant, this is permitted "provided such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." A simple solution would be to incorporate into the Equality Bill a provision comparable to Section 19 of the Human Rights Act, requiring pre-legislative scrutiny for compatibility with equality legislation before any new government legislation is introduced.

Discrimination Law Association

3 December 2008

126   [2007] UKHL 51 Back

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