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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