Memorandum submitted by the Equality and
Human Rights Commission (EHRC)
1. INTRODUCTION
The Equality and Human Rights Commission (the
Commission) commenced operating on 1 October 2007 and
is the independent statutory body with a duty to promote equality,
human rights and good relations in England, Wales and Scotland.[157]
The Commission replaced three statutory equality commissions[158]
and has jurisdiction over equality relating to race, gender, gender
identity, disability, sexual orientation, religion or belief,
and age. In relation to human rights the Commission has duties
to: promote understanding of their importance; encourage good
practice; promote awareness and protection; and encourage public
authorities to comply with human rights obligations.[159]
The Commission welcomes the opportunity to provide
evidence in response to the JCHR call for evidence on the Equality
Bill and its compatibility with the UK's human rights obligations.
The Commission is in a unique position to provide that evidence
having jurisdiction over both enforcing and advising on all equality
legislation, as well as promoting compliance with human rights
obligations both domestically under the Human Rights Act (HRA)
and internationally under international treaties.
The Commission has reviewed the government's
memorandum to the JCHR on the Equality Bill's compliance with
the HRA. This was prepared by the Government Equalities Office
to support a statement pursuant to section 19 of the HRA.
The Commission has also considered the JCHR questions to the government
on the Equality Bill by a letter dated 2 June 2009. The Commission
wishes to highlight concerns relating to the following key issues:
— the need to incorporate equality as a
fundamental human right;
— the need for a purpose clause;
— the limited protection for particular
characteristics;
— the limited protection from harassment;
and
— concerns with exceptions.
We attach at Annex 1 our two submissions
to the Commons Committee Stage (one on disability issues and the
other relating to other concerns) and all the amendments to date
we have tabled or supported other organisations in tabling. We
note that the Commission is still developing its position on a
number of issues and will be tabling further amendments as the
Bill passes through parliament.
2. INCORPORATING
EQUALITY AS
A FUNDAMENTAL
HUMAN RIGHT
Any opinion on the compatibility of the Equality
Bill with the HRA and international law instruments must proceed
from the premise that respect for equality is a fundamental
human right and one which is the very foundation of all human
rights discourse. The UK Government is subject to numerous international
law commitments to respect, protect and fulfil a fundamental human
right to ensure the equal ability of all humans to participate
in society, without facing unjustified discrimination or barriers
on the basis of irrelevant characteristics.
The Universal Declaration of Human Rights 1948,
which underpins all contemporary international human rights law
proceeds from the underlying assertion that:
"the recognition of the inherent dignity
and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice
and peace in the world"
(Preamble, emphasis added).
The Universal Declaration binds all signatories
to "promote respect for" and to "secure [the] universal
and effective recognition and observance" of the human rights
standards and entitlements contained in it.
The Universal Declaration starts, in Article
1, with the assertion that:
"All human beings are born free and equal
in dignity and rights …"
and in Article 2 that:
"Everyone is entitled to all the rights
and freedoms set forth in this Declaration without distinction
of any kind, such as race, colour, sex language, religion, political
or other opinion, national or social origin, property, birth or
other status. …"
The presumption of inherent and inalienable
equality of worth and entitlement is the starting point for Article
26 of the UN's International Convention on Civil and Political
Rights 1966 (the ICCPR). The ICCPR, one of the most comprehensive
equality guarantees in international law, places equality before
the law, equal protection of the law, and equal and effective
protection from unfairly discriminatory treatment at the heart
of human rights discourse. Article 26 ICCPR provides:
"All people are equal before the law and
are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination
and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status."
Article 26 is important in safeguarding
a right to equality and non-discrimination, and not just "equal
protection" of the laws.
A central assertion in the Government Equalities
Office's Memorandum is that offering different levels of protection
to different "protected groups" does not, in itself,
violate Article 14 of the ECHR. That may or may not be so
in any particular context. However, the Equality Bill is intended
to bring together under one umbrella statute all the United Kingdom's
equality laws. So, to the extent that it fails to offer a comprehensive
"equal and effective protection" against unjustified
discrimination "on any ground", it fails to offer full
protection to the UN standard of equality which it has undertaken
both to respect and to protect.
What is critical, in the Commission's view,
is that the Equality Bill should constitute a complete, and adequate,
fulfilment of the rights which the UK has agreed to guarantee,
as a matter of EU, Council of Europe or other international law.
It is also important to ensure that in fields covered by the EU
Equality Directives such as Directive 78/2000/EC ("the Framework
Directive"), nothing in the Equality Bill inadvertently detracts
from existing levels of protection, since to do so would contravene
the non-regression principle in Article 8(2) of that Directive.
That the UK has failed fully to comply with
its international obligations in that respect has been recognised
by the United Nations' Human Rights Committee, which monitors
the implementation of the ICCPR. On 30 July 2008, in its
latest report, it called upon the United Kingdom's government
fully to implement article 26 of the Convention (see Concluding
Observations CCPR/C/GBR/CO/6). The government has also refused
to sign and ratify the Optional Protocol 12 of the ECHR and
to incorporate that into the HRA to provide a free-standing right
to equality.
In April 2009, the Commission made detailed
submissions to the government on the need for on the need for
an Equality Guarantee in the Equality Bill which is attached (see
Annex 2). The Commission believes that an Equality Guarantee is
essential for a number of reasons: to ensure that equality has
the same status as other human rights; to ensure that relevant
exceptions in the Bill and other legislation are subject to equality
guarantee (this would mean discriminatory laws will be subject
to a requirement of being a proportionate means of achieving a
legitimate aim); and to help to further embed equality in key
public functions, including the courts and parliament in developing
legislation. We note that the Commission has received no substantive
response to the detailed arguments in our submission as to why
they will not include an Equality Guarantee.
We also note that although the government has
included in its consultation on a Bill of Rights launched in March
2009 the possibility of a right to equality, they have also
stated that they will not seek to bring forward any legislation
before the general election. It is possible that no Bill of Rights
will eventuate or that the level of protection it provides is
insufficient. The Equality Bill therefore represents a unique
opportunity to incorporate a right to equality which may not reappear
for another generation.
The Commission is aware that the Liberal Democrats
tabled an Equality Guarantee amendment on 11 June 2009 in
the Commons Committee stage. We understand this was based on our
proposed amendment and it is in very similar terms. The Commission
therefore supports that tabled amendment.
3. THE NEED
FOR A
PURPOSE CLAUSE
The Commission notes that the JCHR has asked
the government why it has rejected including a purpose clause
to the Bill. The Commission also made detailed submissions to
the government in April 2009 as to why a purpose clause should
be included in the Bill (see Annex 3).
Equality legislation should be viewed as different
from other civil legislation such as commercial law. It not only
provides civil remedies but also gives effect to fundamental principles
concerning the right to equality as embodied in international
conventions to which the United Kingdom is a party.[160]
This requires a positive and proactive approach to securing equality
and alleviating disadvantages encountered by various groups in
society. It is therefore appropriate for such legislation to set
out the principles and values underpinning the substantive provisions
in order to provide a clear statement of how the legislation seeks
to give effect to the right to equality A purpose clause would
also provide an important tool of interpretation for the general
public and the courts, to ensure that the protections provided
in the Bill are not interpreted narrowly.
The government has not provided any substantive
response to our submission. The Commission is tabling an amendment
to introduce a new purpose clause in the same terms as the model
in our submission to the government (see Annex 3).[161]
4. The Limited Protection for Particular
Characteristics
4.1 Age Discrimination and Children
The Equality Bill includes "age" as
protected characteristic, for the purposes of both direct and
indirect discrimination (see clauses 4 and 5, 13 and
18). The Bill provides for direct discrimination on grounds of
age not to be regarded as unlawful discrimination if the discriminator
can establish that his treatment of a person is a "proportionate
means of achieving a particular end" (see clause 13(2)).
However, clause 26 excludes from any
protection from discrimination in the context of services
and public functions children under the age of 18. This means
that there is no legal protection against discrimination in the
provision of public services and performance of public functions,
even where equal provision of such services may be very much needed.
For example, a police officer who harasses young people under
the age of 18 because of their age; or a homelessness organisation
which refused to give advice to a 17 year old who is in obvious
need, though it would give advice to an older person in an analogous
situation is not even arguably committing an unlawful act of discrimination.
Likewise, a police force which refuses to prosecute an assault
by a parent on a child in circumstances where it would prosecute
if the child were an adult may well be discriminating on grounds
of age, without any legitimate aim in mind or proportionate justification
for doing so. But neither would this be outlawed under the terms
of the Equality Bill as it stands.
The apparent justification for the government's
decision to exclude those under 18 from protection against
age discrimination in provision of goods, services and public
functions altogether, is that it avoids the need for formal justification
for differential treatment of adults and children, where such
differences in treatment are likely to be justified in very many
contexts by their difference in status.
There may often be justification for distinguishing
between the circumstances of adults and children, but that is
an argument for providing a "justification" limitation
to age discrimination against those under 18, such as that contained
in clause 13(2). In cases where a difference in treatment is obviously
justified based on the "bright line" cut off of the
age of majority, the legality of such differential treatment will
easily be justified under the provisions of clause 13(2).
However, there will also be contexts in which
an failure to protect children from treatment which would be unlawful
if inflicted on an adult, or which would not occur if the child
were an adult, serves no legitimate purpose and is not justified.
In such circumstances, the differential treatment of the child
may amount to a violation of Article 14 (if it is a question
which arises in the ambit of another right protected by the ECHR),
and in any event, a violation of Article 26 ICCPR. The lack
of protection from discrimination may also may inhibit the ability
of children to fully enjoy key rights under the UN Convention
on the Rights of the Child (UNCRC) such as freedom of expression,
privacy, the right to physical and mental health, social security
and education.
The Commission does not consider that the absolute
exclusion from those under 18 from the protection against
discrimination on grounds of age is compatible with the UK's international
law obligations.
The Commission has supported an amendment by
Age Concern to amend Clause 26 of the Equality Bill to ensure
that children are protected from discrimination in the provision
of goods, facilities and services and public functions.
4.2 Disabled Persons
The UK government ratified the UN Convention
on the Rights of Disabled Persons (CRDP) on 8 June 2009 with
a number of reservations. The Commission has a number of concerns
in the Equality Bill relating to protection from discrimination
on grounds of disability, some of which relate to compliance with
the UK's human rights obligations under the CRDP. Attached at
Annex 1 is the Commission's submission to the Commons Committee
stage on disability issues.
There are two main concerns that link to human
rights obligations: the definition of disabled persons and exceptions
relating to disabled persons and reflected in several of the reservations
to the Convention.
Definition of disabled persons
The CRDP adopts what is known as a social model
of disability, in contrast to a "medical model". The
Convention recognises (in Preamble (e)), that disability:
"results from the interaction between persons
with impairments and the attitudinal and environmental barriers
that hinder their full and effective participation in society
on an equal basis with others".
The CRPD does not offer an exhaustive definition
of "people with disabilities", but it provides in Article
1 that:
"Persons with disabilities include those
who have long-term physical, mental intellectual or sensory impairments
which in interaction with various barriers may hinder their full
and effective participation in society on an equal basis with
others".
The definition of "disability" in
clause 6 and Schedule 1 of the Equality Bill, repeats
the "medical" model of disability which is currently
contained in the Disability Discrimination Act 1995 (DDA)
and the regulations made thereunder. It does this by protecting
only those persons who have (or have had) a physical or
mental impairment which "has a substantial and long-term
adverse effect on [that person's] ability to carry out normal
day-to-day activities". "Long term" is defined
in paragraph 2 of Schedule 1. Paragraph 1 of the schedule
allows for the making of regulations which provide for a condition
of a prescribed description to be, or not to be, an impairment.
Paragraph 3 of Schedule 1 allows for certain disfigurements
(which could include the consequences of self-harm) not to be
regarded as disabilities, and paragraph 4 of Schedule 1 allows
for the making of regulations which may prescribe what inabilities
to carry out "normal day-to-day activities" may be treated
as being, or not being, a substantial adverse effect.
The Equality Bill definition of disability is
significantly narrower than the minimum definition of a person
with disabilities contained in the UNCRDP. In particular:
(a) the UN definition focuses on whether the
person with an impairment experiences an environmental or attitudinal
barrier which "hinders" their full and effective participation
in society on an equal basis with others, rather than whether
the person's impairment alone has a practical effect on ability
to perform specific functions. Anybody facing the combination
of impairment and attitudinal barrier falls within the protection
of the CRDP. However, the proposed Equality Bill apparently only
protects those defined as disabled, and does not define a person
as disabled unless they have a physical or mental impairment which
has a substantial, long-term adverse effect on their ability to
function day to day. What is substantial, what is "long-term",
and what is "ability to carry out normal day to day activities"
are all matters capable of generating fruitless litigation and
legal uncertainty.
(b) The UN definition is inclusive, and allows
for no exemptions. The proposed Equality Bill definition allows
for certain impairments to be excluded from the definition of
disability. Indeed, the current Disability Discrimination (Meaning
of Disability) Regulations 1996 (SI 1996/1455) ("the
Meaning of Disability Regulations") exclude a whole swathe
of "psycho-social" disorders, such as alcoholism and
voyeurism from the definition of disability.
(c) The UN definition covers "physical,
mental, intellectual or sensory impairments", whereas "intellectual"
and "sensory" impairments are specifically excluded
from the Equality Bill definition. This could lead to judicial
interpretation of the Bill which is narrower than that required
by the UN definition. Whilst a "mental impairment" is
apt to encompass a person with learning difficulties, proved by
an educational psychologists' report, it has been held that "it
is unlikely to be sufficient for a claimant to put his case only
on the basis that he had difficulties at school and is not very
bright" (Dunham v Ashford Windows [2005] IRLR 608).
(d) The UN definition has no limitation as to
how serious an impairment must be to amount to a disability. The
proposed Equality Bill definition requires the effects of the
impairment itself to be both "substantial" and
"long term" before they are covered. A "substantial"
effect has been held—under the terms of the Disability Discrimination
Act 1995—to be one which is more than minor or trivial (Leonard
v South Derbyshire Chamber of Commerce [2001] IRLR 9).
The Bill removes the list of "normal day
to day activities" from the definition of disability so potentially
opening up protection to individuals whose impairments or conditions
did not readily match these "capacities", but it repeats
the requirement that the effects of an impairment are long-term.
The Commission has tabled an amendment to delete
from the definition of disability the words "long term"
(see Annex 1). This would help address discrimination faced by
people with short term or fluctuating impairments—especially
mental health conditions—and therefore the contribution
it is able to make to wider policy objectives including reducing
the flow of people onto Employment and Support Allowance (previously
Incapacity Benefit). It would also provide a broader definition
more consistent with the broad definition in the CRDP.
Exceptions permitting discrimination
The Commission is concerned that two types of
exceptions in the Equality Bill which permit discrimination against
disabled persons are not in compliance with the CRDP. This relates
to employment in and provision of services by the armed forces
and an immigration exception. The Commission has submitted to
the government that parallel reservations to the Convention are
also not consistent with the object and purpose of the CRDP, unnecessary
and should be withdrawn or reviewed.
Armed Forces
In relation to the armed forces, under Schedule
9 Paragraph 4 there is an absolute exclusion of the
armed forces regarding protection from discrimination in employment
on grounds of disability. In addition, under Schedule 3 Paragraph
4 discrimination in the provision of services for the purpose
of ensuring combat effectiveness of the armed forces is not prohibited
on grounds including disability.
Article 27 of the CRDP relates to the right
of employment for disabled persons. The Commission considers that
the blanket exclusion from protection from discrimination of disabled
persons in employment is not necessary or compliant with the Convention.
A test of a proportionate means of achieving a legitimate aim
should be introduced to an exception and the Commission is considering
tabling an amendment to that effect. In relation to the combat
effectiveness exception for services, the Commission agrees that
it is reasonable to have the exception but that a requirement
of proportionality should be introduced. The Commission has already
tabled an amendment to that effect (see Annex 1).
Immigration
Schedule 3 Paragraph 16 creates a
new exemption concerning disability discrimination and immigration
decisions. Protection from disability discrimination in relation
to decisions to refuse entry clearance and in relation to leave
to enter or remain, is not prohibited where it is on the ground
that doing so is "necessary in the public good".
The explanation for this is said to be that such was not necessary
prior to the Bill because the Disability Discrimination Act (DDA)
did not cover direct discrimination in the exercising of public
functions. According to the Explanatory Notes:
"An express exception was not previously
needed since the Disability Discrimination Act 1995 did not
prohibit direct discrimination in the provision of services or
exercise of a public function, and because disability related
discrimination, which did apply to the provision of services or
exercise of a public function, could be justified if it was necessary
not to endanger the health or safety of any person.
A person who arrived at a British airport
with TB could be refused entry if this was considered necessary
to protect the health of the general public."
The explanation is problematic because, as the
Explanatory Notes acknowledge, disability-related discrimination
was always covered by the DDA in the context of the exercising
of public functions including immigration functions (section 21D,
DDA) and there was no blanket exclusion in relation to the same.
Instead, any such discrimination would only be unlawful where
not justified having regard to certain conditions or if any discrimination
was proportionate means of achieving a legitimate aim.
This exception links to the government's reservation
to the UN Convention on the Rights of Disabled Persons relating
to immigration. The Commission with the recent JCHR report on
reservations to the Convention that the reservation is not only
unnecessary but also inconsistent with the objects and purpose
of the Convention, in particular the right under article 18 of
the Convention to liberty of movement without discrimination on
grounds of disability.
The proposed new exception does not require
a legitimate aim or proportionality and also is not in compliance
with the government's obligations under the Convention.
In relation to paragraph 16, the Commission's
position is that an approach similar to section 21D is appropriate,
requiring a legitimate aim and proportionality, with an addition
that any amending Regulations also be subject to a requirement
of a legitimate aim and proportionality. The Commission has tabled
an amendment to that effect (see Annex 1).
4.3 Discrimination by association and perception
Paragraphs 24 and 71 of the explanatory
notes to the Equality Bill state that the definition of direct
discrimination in proposed definition includes those whose impairment,
condition or illness is "imputed", or for those who
are discriminated against by reason of their association with
those who have a disability. The Commission agrees that it is
necessary to have a broad definition of discrimination "because
of" disability, broad enough to cover those wrongly assumed
to be disabled and carers or other associates of disabled people.
Without such a broad definition, the UK will fail to comply with
its obligations under the EU Framework Directive (insofar as work
and further and higher education are concerned). It will also
fail to comply with Article 26 ICCPR and Article 14 ECHR
(within the ambit of other ECHR rights), which both require protection
from unjustified discrimination on grounds of a particular "status".
A ban on "associational" discrimination
and discrimination on "imputed" or associational grounds
is required, in the context of work and higher education to give
effect to the decision of the ECJ in the Coleman case referred
to above. It is also required so as to avoid regression from the
principle established in two recent domestic court decisions.
In Saini v All Saints Haque Centre [2008] UKEAT/0227/08 (in
which "discrimination on grounds of religion" was held
to include discrimination on grounds of association with someone
of a particular religion), such an interpretation was said to
be necessary to comply with the EU Framework Directive.
In English v Thomas Sanderson Ltd [2008]
EWCA Civ 1421, the Court of Appeal held that discrimination "on
grounds of" sexual orientation included discrimination on
grounds of imputed sexual orientation, whether or not the victim
of the discrimination had the sexual orientation imputed to him,
(and indeed whether or not the discriminator believed that he
did). Again, this was partly so as to comply with the EU Framework
Directive, and partly because, as the Court of Appeal recognised,
characteristics such as "sexual orientation" are not
capable of precise "scientific" definition.
If the Equality Bill does not protect those
associated with disabled persons from discrimination "because
of" this association or those to whom disability is wrongly
imputed, it will not fulfil the United Kingdom's international
law obligations under Article 26 ICCPR, Article 14 ECHR,
and the UNCDPR. It will also violate the non-regression principle
in Article 8(2) of the Framework Directive. The government intends
the current text to afford such protection. But it is not entirely
clear from it that the Bill does prohibit discrimination by association
or imputation. In order to avoid unnecessary public and private
legal expenditure, and breach of the UK's international law obligations,
it would make sense for this to be clarified. The Commission has
supported an amendment to introduce express prohibitions on discrimination
by association and perception.
4.4 Discrimination on grounds of marriage
or civil partnership
Clause 8 of the Bill appears to suggest
that the protection is only afforded to those who are married
or civil partners. The same suggestion is made explicit, in the
context of work, by clause 13(5), which provides that direct discrimination
on this ground is only unlawful if the treatment is because a
person "is married or a civil partner". It does not
appear to protect against discrimination against someone because
they are not married or a civil partner, and this is borne out
by the explanatory notes which accompany the Bill. This is by
contrast to clause 10 of the Bill, in relation to religion
or belief, which explicitly states that reference to religion
includes a reference to lack of religion.
Consequently, there is no free-standing guarantee
against discrimination on grounds of "marital status".
Instead, a decision to discriminate in favour of those
who are married or civil partners, against those who are
neither married nor in a civil partnership, is intended to be
lawful.
Such discrimination against a person
on the basis that they are unmarried, or not in a civil partnership,
would obviously be discrimination on grounds of marital/civil
partnership status. It would therefore contravene Article 26 ICCPR,
as well as Article 14 ECHR within the ambit of other rights
protected by the ECHR.
The Commission is still considering its position
on these issues.
5. THE LIMITED
PROTECTION FROM
HARASSMENT
Exclusion of pregnancy, maternity, marriage and
civil partnership from the relevant protected characteristics
protected from harassment altogether
There is no explanation in the explanatory notes
to the Bill of the failure render unlawful harassment in relation
to pregnancy or maternity, or marriage or civil partnership, even
though these are some of the most distressing forms of behaviour
to people who may be acutely vulnerable.
The failure to provide such protection for women
from harassment on grounds of pregnancy or maternity, in the contexts
of service provision, public functions and work, where the specific
earlier provisions of the Equality Bill explicitly exclude such
behaviour from being regarded as a form of sex discrimination,
almost certainly violate the EU Directives, Article 26 ICCPR
and CEDAW (for reasons which are analogous to those given for
failure to protect against indirect discrimination, in paragraph
46 above).
Harassment on grounds of pregnancy and maternity
or marriage of civil partnership is behaviour which would fall
within the ambit of article 8 ECHR, or even—in certain
circumstances—within the ambit of article 3. However, it
is far from clear that positive obligations under Article 14 would
stretch to rendering such behaviour unlawful if performed by a
private individual, not himself or itself susceptible to direct
challenge under the HRA. It does not, therefore, seem likely that
this lacuna would be filled by recourse to a remedy under the
HRA. The Government's reasons for excluding pregnancy and maternity,
marriage and civil partnership from the "relevant protected
characteristics" under clause 24(5) remain opaque.
The Commission is still considering its position
on these issues.
6. CONCERNS WITH
EXCEPTIONS
The Commission's position on a range of exceptions
can be seen from the amendments we have tabled to date (see Annex
3). The Commission's broad position on exceptions is that they
must be fully compliant with EU law and should (where appropriate)
be subject to a requirement of being a proportionate means of
achieving a legitimate aim. This is essential and reasonable as
it only permits public authorities and the private sector to discriminate
where it is justified. It is also consistent with existing discrimination
principles (for example justification for indirect discrimination)
domestically and at EU level in the Equality Directives, and human
rights principles in relation to article 14 of the European
Convention of Human Rights and international treaties.
The Commission is pleased that a number of the
exceptions as currently drafted do require a legitimate aim and
proportionality.[162]
However in relation to a large number of other the exceptions
there is no express requirement of a legitimate aim and proportionality.
The Commission is currently considering its position on proposing
a new clause that would subject appropriate clauses to a requirement
of being a proportionate means of achieving a legitimate aim.
The Commission also notes that it is considering
the Charitable Sector exception. Clause 186 of the Equality
Bill as currently drafted proposes to allow charities to discriminate
in the provision of services and restriction such provision to
persons with a particular protected characteristic (apart from
"colour") if:
(a) the person acts in pursuance of a charitable
instrument, and
(b) the provision of the benefits is either a
proportionate means of achieving a legitimate aim, or for the
purpose of preventing or compensating for a disadvantage linked
to the protected characteristic (clauses 186(1), (2) and (4)).
Clause 186 also proposes that charitable
organisations which have historically required an assertion or
implies membership of or belief in a religion, such as Girl Guides
and Scouts, as a condition of membership continue to be able to
do so (clause 185(5)), and for certain fundraising and other supporters'
activities to be restricted to particular groups.
The intention of clause 186, according to the
explanatory notes, is to harmonise the current "service provision"
charitable exceptions which permit restrictions in provision of
benefits contained in charitable instruments. These are currently
contained in:
(c) Section 43 of the Sex Discrimination
Act 1975 (sex);
(d) Section 34 of the Race Relations Act
1976 (race, nationality);
(e) Section 58 of the Equality Act 2006 (in
relation to members of a particular religion or belief);
(f) Regulation 18 of the Sexual Orientation
Regulations 2007 (persons of a particular sexual orientation).
The Government's Memorandum recognises that
the charitable exceptions raise human rights issues. The Commission
agree that this is so. Conferment of "charitable status",
with its attendant tax and other benefits, is a public function.
It is exercised, in England and Wales, by the Charity Commission.
A charity is defined, in clause 187 of the Equality Bill,
as having the meaning given by the Charity Act 2006 (that
is, a body which has a potentially charitable purpose which is
also of sufficient "public benefit" to be regarded as
a charity).
In the Commission's view, a "public benefit"
must be defined compatibly with section 3 HRA: in other words,
an ostensibly charitable object cannot be regarded as "charitable"
unless it is compatible with ECHR standards. Thus, a charitable
instrument which limits conferment of a benefit to a group defined
by reference to a status which fall within Article 14—as
all the protected grounds will—(in a context which falls
within the ambit of another Convention right) must be objectively
justified on the Strasbourg standard. If the discrimination in
the terms of the ostensibly "charitable" instrument
cannot be justified to that standard, then the Charity Commission,
or, on appeal, Charity Tribunal would act contrary to the ECHR
and unlawfully if it treated the object as being "of public
benefit".
In deciding whether a charitable instrument
complies with Article 14 ECHR, it is important to appreciate
that it is the discrimination in the conferment of benefits
to a limited group which must be justified, and not the generally
beneficial purposes of the charity: see A v UK [2005] 2 AC
68 (it was not the necessity of detention without trial which
fell to be justified, but the necessity of detaining only foreign
nationals without trial).
As currently drafted, clause 186 risks
being interpreted in a way which is incompatible with Article
14 ECHR, because:
(g) in relation to clause 186(2)(a), it is not
apparent that it is the limitation on conferment of benefits
to a particular group which must meet a legitimate aim: it implies
that the general nature of the proposed "good works"
may intrinsically justify discrimination in the delivery of them;
and
(h) in relation to clause 186(2)(b), it is not
clear that merely intending to prevent or compensate for
a disadvantage linked to the protected characteristic is insufficient
justification, on its own, for a discriminatory charitable instrument.
To comply with Article 14, this limb would have to state that
a charitable instrument which discriminated in this way would
pursue a legitimate aim, but that the terms of the instrument
would also have to be a relevant and proportionate means of achieving
it.
The concern that clause 186 as presently
drafted could be incorrectly interpreted is not a mere fanciful
or theoretical one. In its Memorandum, the Government says that
his exception would be interpreted narrowly, and gives the example
of the Charity Commission's refusal to allow Catholic Adoption
Charities to change their charitable objects so as to permit them
to discriminate on grounds of sexual orientation. It uses this
as support for the proposition that an exemption of this kind
will not be misused so as to discriminate in illegitimate ways.
However, since the Memorandum was drafted, matters have moved
on. The Catholic Charities appealed to the Charity Tribunal. The
Charity Tribunal decided, in its preliminary decision dated 13 March
2009, (para 72) that:
"Regulation 18 [of the Sexual Orientation
Regulations 2007] permits charities to discriminate on grounds
of sexual orientation if this is within the realm of pure charitable
activity, is permitted by the charitable instrument, is not otherwise
unlawful, and the expedience test under regulation 18(2) is satisfied".
The Charity Tribunal did not accept submissions
from the EHRC that any such discrimination could only be permitted
if it was justifiable to the Convention standard, since charities
are not public authorities bound by s6 HRA. (It did not address
the argument that a "charitable benefit" must be interpreted
compatibly with s3 HRA, by any body, public or private).
In the Commission's view, the Charity Tribunal
could easily interpret clause 186(2)(a) of the Bill in the same
way—indeed it was urged to maintain a wide reading of regulation
18 of the Sexual Orientation Regulations 2007 by counsel
for the Catholic Charities by reference to the wording of clause
186(2)(a).[163]
We assume that the intention of clause 186 (2)(a)
of the Equality Bill is not to allow (say) a Catholic Charity
to discriminate against beneficiaries on grounds of sexual orientation,
without justification, on the basis merely that the benefits it
distributes are generally a good thing, without expressly justifying
the discrimination itself. Yet, in cases other than those involving
an element of public funding, that is the implication of the Charity
Tribunal's decision on Regulation 18 of the Sexual Orientation
Regulations 2007 in the Catholic Charities case, and a like
interpretation could be carried over to clause 186 of the
Equality Bill. The Commission therefore considers that clause
186(2) as presently drafted could be incompatible with Article
14 ECHR in circumstances where other ECHR rights are engaged,
and incompatible with Article 26 ICCPR in any event.
The Commission considers that the proposed "charitable
exception" would most clearly be compatible with Article
14 if it were limited to contexts where the provision of
services to a group restricted by reference to a protected characteristic
was a proportionate means of meeting special needs of a particular
disadvantaged group.
The Commission is currently considering a formulation
of an amendment to ensure that the exception is compliant with
human rights obligations.
ACKNOWLEDGMENT
The Commission expresses its gratitude for the
invaluable written advice from Helen Mountfield of Matrix Chambers
which has formed the basis of substantial parts of the Commission's
submission.
157 The Commission has statutory jurisdiction over
Equality legislation in Scotland. In relation to human rights
issues in Scotland it has jurisdiction relating to matters which
are "reserved" to the Westminster parliament. In relation
to matters "devolved" to the Scottish parliament the
Scottish Human Rights Commission has jurisdiction. The Commission
and the SCHR also have powers to act jointly or cooperate on matters
relating to human rights in Scotland: see section 7 of the
Equality Act 2006. Back
158
The Commission for Racial Equality, the Equal Opportunities Commission
and the Disability Rights Commission. Back
159
Section 9(1) Equality Act 2006. Back
160
For example the Convention on the Elimination of Racial Discrimination
(CERD), Convention on the Elimination of Discrimination Against
Women (CEDAW), Convention on the Rights of Disabled Persons (CRDP). Back
161
To be tabled by Tim Boswell MP. Back
162
For example the provisions on separate and single services under
Schedule 3 Part 6 Paragraphs 23 to 25, communal
accommodation on grounds of sex and gender reassignment under
Schedule 23 Paragraph 23, genuine occupational requirements
relating to religion or belief under Schedule 9 Par 1 Paragraph
3, and national security under clause 185. Back
163
At the final hearing of this appeal, the Charity Tribunal upheld
the Charity Commission's decision not to allow the Catholic Charities
to change their charitable objects in the context of this case.
But that was not because it considered any such change of objects
must comply with the Convention. It was on the basis that The
only reason that, at the substantive hearing, the Charity Tribunal
decided that the charities could not change their objects was
because it was perceived that to permit them to do so would also
contravene regulation 15 of the Sexual Orientation Regulations
2007, which would not apply to every act of discrimination. Back
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