Memorandum submitted by Equality and Diversity
Forum
Equality law fit for the 21st Century?
1. The Equality and Diversity Forum is the
network of national organisations committed to progress on age,
disability, gender identity, race, religion and belief, sex, sexual
orientation and broader equality and human rights issues.
2. We welcome the proposed Equality Bill
which aims to:
"Make Britain a fairer place where people
have the opportunity to succeed whatever their race, gender, disability,
age, sexual orientation, religion or belief. Fairness and an absence
of discrimination are the hallmarks of a modern, decent society,
with a strong economy, which draws on the talents of all".
3. We consider that the existing laws on
age, disability, gender identity, race, religion or belief, sex
and sexual orientation discrimination need to be brought together
in a single Equality Act.
4. Current discrimination law is unequal
in its scope. The table below shows the differences in anti-discrimination
protection for the different grounds in relation to the three
main areas of current law:
| SCOPE | Race
| Sex | Disability
| Religion
or Belief
| Sexual
Orientation
| Age |
| Employment | |
| |
| | |
| Goods and services |
| | |
| |
|
| Public authority duties |
| | |
| |
|
5. The Equality and Diversity Forum (EDF) considers that
the proposed Equality Act should ensure full protection for all.
6. Additionally, there are numerous small and unnecessary
differences between the discrimination provisions relating to
the different grounds for discrimination, these should be eliminated
unless there is specific clear, necessary and proportionate justification
for retaining such differential provisions.
What is needed?
— An end to the current anomalous failure to outlaw
discrimination on grounds of age in the provision of access to
goods, facilities and services.
— A robust single public sector equality duty that covers
all grounds, ensuring public bodies "think equality"
throughout their functions.
— Express provision for the use of public procurement
to secure equality outcomes in the private sector.
— Provisions to address multiple discrimination.
— The use of simplified common definitions wherever
possible.
— A clear statement of purpose and principles of equality
rights in order to give overall coherence and direction.
Age
7. Currently there is no law that protects people from
age discrimination in access to goods, facilities and services.
Such a law has a vital role to play in establishing a fair and
equal society, without these the Bill will fail in its objective
of simplifying and strengthening the UK's equality law, and will
send out the message that some are more equal than others. Substantial
evidence exists of the inequalities experienced by people because
of their age—whether as patients in receipt of health care
or social services, as volunteers or in respect of insurance and
other financial services. For instance, a recent Help the Aged
report found that 73 per cent of people agree that older
people face discrimination on grounds of age in their everyday
lives.[146] Whilst
Age Concern has noted that 23 per cent of adults report experiencing
age discrimination, more than any other form of prejudice.[147]
8. We are concerned that the Government is proposing
a further 18 months of discussion before regulations would
be even be drafted. This would effectively guarantee that regulations
will not be in place this side of a general election. We consider
that this creates a real risk that regulation may never be put
in place. We also feel it is too long to ask older people to wait
for fair treatment in health and social care.
9. Whilst we acknowledge the Government's concerns about
the possible costs of implementing a ban on age discrimination
and acknowledge the calls that have been made for a phased implementation
of the legislation, this need not delay the laying of regulations,
which will be vital in setting out a clear framework towards which
providers can work.
10. Bearing in mind the findings of the Joint Committee's
Eighteenth Report of Session 2006-07: The Human Rights of Older
People in Healthcare, and the serious and damaging nature of age
discrimination in health and social care, we consider that regulations
should be brought forward without delay.
11. There is also evidence of discrimination experienced
by younger people. For example, a recent UK government report
found the most common form of unfair treatment reported by children
and young people related to that based on age (43 per cent).[148]
Public sector equality duties
12. Equality can be delivered by taking complaints or
individual enforcement action, if discrimination occurs; however,
it can also be achieved by requiring public authorities to promote
equality in the way that they operate. These requirements are
often called "public sector equality duties". They are
intended to ensure that public authorities mainstream equality
considerations into all their actions. They do this by requiring
public authorities to have due regard to the need to eliminate
discrimination and promote equality in all that they do. Currently
there are equality duties in force for race, gender and disability.
Such duties can make a profound difference to equality outcomes
in vital areas that impact on life chances, not least in education,
health, housing, criminal justice and employment.
13. EDF considers that that the duties should be extended
to cover religion or belief, sexual orientation and age, and be
capable of addressing the specific needs of each ground. An integrated
equality duty could be more efficient and effective, whilst not
diminishing the impact of any of the existing duties. However,
we do recognise that in order to ensure that there is no regression
from the existing duties it may be necessary to have a very limited
number of ground specific differential provisions, for example,
to reflect the obstacles constructed by society that impede people
with disabilities the provision that ensures that public authorities
should "take steps to take account of disabled persons' disabilities
even where that involves treating disabled persons more favourably
than others". In the case of gender, a duty to promote equal
pay between men and women.
14. Within the EDF there is a range of views about the
extent of the duty in relation to religion or belief. Our discussions
have led us to consider two additional provisions, firstly, a
provision to confirm that "the objective of the duty to advance
equality of opportunity is to achieve a society that is fair and
equal and it does not mean the promotion of any particular identity
or belief" and, secondly, a provision "to ensure that
a public body cannot promote equality of opportunitiy for one
protected group at the expense of another protected group".
We do not currently have a consensus on this, however, we thought
that it would be worth suggesting as a possible way forward to
resolve some of the concerns that have been raised.
Public procurement
15. It is important to ensure that employees in the private
sector do not receive less protection than those in the public
sector. One way to achieve this is for public authorities to include
equality requirements in any contract they enter into to outsource
work. The use of such requirements can be a very effective means
for achieving change within the private sector. This is well recognised.
The CBI has said "Employers believe public procurement is
a highly effective lever for increasing diversity…".[149]
But the Discrimination Law Review found a lack of clarity about
the extent to which public bodies are permitted to use procurement
to achieve equality objectives. Some public bodies also lack motivation.
The EDF is convinced that the opportunity should be taken in the
proposed Equality Bill to include a specific clause to make clear
that public authorities must build equality into all aspects of
their procurement processes—ensuring that public bodies
feel both entitled and obliged to use procurement in order
to achieve equality outcomes.
16. The Review acknowledged considerable guidance was
already available on this issue. So simply providing more guidance
will not lead to action. With outsourcing increasing, EDF considers
that it is vital that there be a statutory clarification of the
role of procurement as a lever for equality. Professor Christopher
McCrudden has drafted a possible clause to provide clarification
of public authorities powers in relation to procurement which
we would be happy to pass on to the committee if this would be
helpful.
Multiple discrimination
17. There is an increasing awareness of the complexity
of the operation of discrimination within our society. People
do not simply fit into single-issue categories as black, disabled,
gay etc. Individuals are diverse, complex and multi-layered, and
sometimes they are treated unfairly for more than one reason.
However, our equality laws assume that the treatment of people
should be analysed by reference to one single characteristic at
a time. EDF considers it important that any new equality law is
able to take account of the treatment of the whole person, not
just one aspect of their identity.[150]
Common definitions and concepts
18. A new equality act needs to be simple and clear and
consistent in its application to all of the protected grounds,
unless there is good objective justification for distinguishing
particular grounds. We consider that common definitions should
be used wherever possible and that it is important that these
should be as close as possible, if not identical, to the definitions
set out in the relevant EC equality directives.[151]
Statement of purpose
19. EDF considers that a clear statement of the way in
which equality law should be interpreted would assist its application.
A modern law should both reflect current thinking and set new
standards—by changing hearts and minds without the
need for litigation. By setting out the objectives and goals of
the Act, it would provide guidance to those seeking to interpret
it, both Courts and Tribunals, as well employers and service providers.
Equality and Diversity Forum,
December 2008
146
Older people's accounts of discrimination, exclusion and rejection,
a report from the Research on Age Discrimination Project (RoAD)
to Help the Aged, 2007. Back
147
TNS survey on behalf of Age Concern England, representitive sample
of 2,113 adults in Great Britain, July 2006, unpublished,
quoted in The Age Agenda 2008, Age Concern England. Back
148
Consolidated 3rd and 4th Periodic Report to UN Committee on the
Rights of the Child, 2007, p34-35. Back
149
Confederation of British Industry, Evidence to the Equalities
Review, 2005, p35, para 118. Back
150
The EDF leaflet on Multidimensional Discrimination explains this
further and is available at http://www.edf.org.uk/news/MultidimensionalDiscriminationLeaflet.pdf Back
151
Council Directive 2000/43/EC implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin,
Council Directive 2000/78/EC establishing a general framework
for equal treatment in employment and occupation, Directive 2002/73/EC
of the European Parliament and of the Council 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 and
Council Directive 2004/113/EC implementing the principle of equal
treatment between men and women in the access to and supply of
goods and services. Back
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