Legislative Scrutiny: Equality Bill - Human Rights Joint Committee

Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents

Memorandum submitted by Liberty

INTRODUCTION

1. Liberty has a long-standing interest in discrimination and equality. We have been involved in many leading discrimination cases[200] and we have recently responded to a number of consultations on the future of discrimination law. There is no doubt that significant steps have been taken towards greater equality in the United Kingdom over the last decade. We greatly welcomed the enactment of the Civil Partnership Act 2004, the Gender Recognition Act 2004, and the Equality Act 2006.

Liberty believes the post-war human rights consensus to be an essential part of the equality agenda. As such, we believe that the consolidation and harmonisation of discrimination protection is symbolic; recognising the inalienability and universality of the non-discrimination principle. A Single Equality Act presents a significant and historic opportunity for reviewing the principles underpinning our anti-discrimination scheme and for consolidating and extending discrimination protection to categories and strands not currently covered. We welcome the opportunity to present evidence to the Joint Committee on Human Rights in relation to the human rights implications of this Bill.

PROTECTED CHARACTERISTICS

2. Liberty welcomes the extension of the protection against discrimination on several grounds, including gender reassignment, marriage and civil partnership, religion or belief and sexual orientation as well as race, sex and disability. Greater harmonisation of the law of direct discrimination is long overdue and we are pleased that the Government intends to extend protection for victims of discrimination on protected grounds in a number of new areas. We are however, disappointed that there are a number of characteristics for which an unduly narrow definition is given and other characteristics which we believe should be protected, but which are not recognised here.

Age discrimination

3. Liberty welcomes the extension of protection from age discrimination in the provision of goods and services in this Bill. This change will make it unlawful for a person to discriminate against a person on the basis of his or her age in the provision of goods and services. We believe that extending protection from age discrimination in this way sends a powerful equality message. We believe that this extension will have a particular impact for older people many of whom suffer direct and indirect discrimination in so many aspects of their lives.[201] Indeed, a 2005 Age Concern survey found more people have reported suffering age discrimination than any other form of discrimination and that from age 55 onwards‚ people are nearly twice as likely to have experienced age prejudice than any other form of discrimination.[202]

4. However, just as many older people experience age discrimination, younger people also face daily discrimination on the basis of their age. Liberty, would therefore, expect that in extending protection from age discrimination in the provision of goods and services, the Government would include everybody. Unfortunately, in its current form children under the age of 18 will not be protected against discrimination in the provision of services and the exercise of public functions (see clause 26).[203] No reason is given as to why children are excluded from this important provision. The Minister for Women and Equality, Harriet Harman, stated in the House of Commons last year that "there is little evidence of harmful age discrimination against young people. Harmful age discrimination is basically against older people".[204] Yet, in Liberty's view there is substantial evidence of young people facing daily discrimination in respect of the provision of services, and in the exercise by public officials of their public functions.[205] Most worryingly, research shows that older children (ie 16-17 year olds) often receive less favourable treatment from health services, including mental health services and in respect of cancer treatment, and from child protection services.[206] These are issues of serious concern and could at least be partially addressed by including a prohibition in respect of discrimination against all age strands in Part 3. In particular, clause 27 prohibits discrimination, harassment or victimisation by a service-provider against a person requiring the service or by a person in the exercise of a public function. Expressly excluding children from this requirement (as occurs in clause 26) sends a negative message about the attitude that society takes towards children. By including children within this protection, parliamentarians would still be free to frame appropriate exceptions to general rule that discrimination against children is prohibited. The government should therefore explain why it is considered necessary to exempt children from this protection, instead of including them and expressly excluding that which might be appropriate (eg excluding children from nightclubs, casinos or bars).

5. Clause 190 of the Bill provides that a Minister can amend the Act once passed by way of an order to provide that specified conduct, or specific arrangements do not contravene the Act in respect of age (except in relation to work or further and higher education). The Explanatory Notes state that this is a new provision "designed to allow exceptions to be made from the new prohibitions on age discrimination".[207] However, this power is not limited to amending the Act in relation to exemptions—it could allow for any amendment in relation to age, including to exclude it altogether. It is not clear why the relevant exemptions cannot be set out on the face of the legislation and then properly debated by parliamentarians.

Marriage and civil partnerships

6. The protected characteristic of marriage and civil partnership is defined in clause 8 as covering people who are married or a civil partner. This is a very narrow definition and does not cover either people who are in, or have been in, significant relationships for which they may well suffer discrimination or harassment, or indeed people who are discriminated against or harassed for reason of not being in a relationship. This is despite the fact that the House of Lords[208] has ruled that a provision referring to a "married couple" should include an unmarried couple in order to comply with human rights law.[209] The way clause 8 is drafted excludes this possibility. Liberty believes that people who cohabit should also be protected as protection from discrimination should not rest on the legal status of the union. In addition, those who have divorced or separated; those who have been widowed; and those who are single should not be allowed to be discriminated against on the basis of their status. It is difficult to see why, in principle or in practice, protection should be limited to those who are married or in a civil partnership. In Victoria, Australia, for example, equality legislation has for many years defined "marital status" as meaning a person's status of being single, married, domestic partners, separated, divorced or widowed.[210]

7. The Bill also contains a large number of provisions which exclude married people from protection against discrimination including the prohibition against harassment (clause 24), Part 3 on the provision of goods and services (see clause 26(1)(b)), Part 4 on the disposal, management and occupation of premises (clause 30), Part 6 on education (both at school, clause 79(b), in further education, clause 85 and by qualifications bodies, clause 90), and Part 7 in relation to membership of associations. This omission means that it is lawful to discriminate against a person on the basis of marriage in the provision of goods and services—including when a person is exercising a public function; to discriminate against a married student in the provision of their education; and for an association to discriminate against, harass or victimise an existing or potential member or associate because they are married or in a civil partnership. In addition, Part 11 which contains the Public Sector Equality Duty does not apply to the protected characteristic of marriage or civil partnerships (clause 143). No explanation is given as to why marriage and civil partnerships as a characteristic are excluded from much of the protections afforded within this Bill. Although this reflects the current law there is no reason why this Parliament cannot go further than what is contained in present legislation to offer greater protection from discrimination, victimisation and harassment on the grounds of relationship status. If a person is discriminated against, victimised or harassed on the basis of marriage or civil partnership status why should this not be classified as unlawful in many of these areas?

Pregnancy

8. A woman who is treated less favourably because she is pregnant (or because she has given birth within the previous 26 weeks) is protected to some extent under this Bill (see clauses 4 and 16). However, we notice that this protection is not extended in respect of primary or secondary education (clause 79). No reasons are given as to why this is so. Research has indicated that young mothers experience discrimination and disadvantage at school[211] and are less likely to have qualifications than others.[212] We hope that by excluding this characteristic from primary and secondary education the government is not intending to send a green light to schools to say it is acceptable that pregnant girls be excluded from education merely on grounds of their pregnancy. We hope that, if not provided for in this Bill, an appropriate framework will be brought forward to ensure that pregnant school girls are given appropriate access to education (balanced of course with any medical concerns regarding their health).

DISABILITY DISCRIMINATION

9. Liberty welcomes the inclusion of clause 14 in the Bill. This clause explicitly provides that a person will have discriminated against a disabled person if he or she treats the person in a particular way, which due to the persons disability, amounts to a detriment where the treatment cannot be shown to be a proportionate means of achieving a legitimate aim. This clause is a new provision introduced as a response to the interpretation of discrimination by the House of Lords in Lewisham v Malcolm.[213] In Lewisham v Malcolm the local council sought to evict Mr Malcolm from his council home after he sublet his flat in breach of his tenancy agreement. Mr Malcolm, who has schizophrenia, sublet his flat during a period when he was not taking his medication, and claimed that because of his disability he didn't understand that he was not allowed to sublet his flat. The Council argued that its policy was non-discriminatory as it would evict anyone who breached their tenancy agreement. The House of Lords agreed with the Council and found, by a majority, that if the policy was applied equally to everyone who illegally sublet their flat then that was not discrimination under the Disability Discrimination Act 1995 (DDA). The basic effect of that decision was that if a policy was applied equally to all people it would not be discriminatory, even if it unjustifiably placed disabled people at a particular disadvantage.[214] We are therefore pleased that clause 14 has been included in this Bill to clarify this.

PUBLIC SECTOR EQUALITY DUTY

10. Clause 143 of the Bill introduces a public sector equality duty requiring public authorities to have due regard to the need to eliminate discrimination, harassment, victimisation and anything else prohibited by the Bill; to advance equality of opportunity; and to foster good relations between people with a protected characteristic (eg race, sex etc) and those that don't share it. There is currently a public sector equality duty that applies in relation to race, disability and gender. However, there is nothing in existing legislation covering age, religion or belief or sexual orientation. Liberty has consistently supported the creation of a public sector equality duty that covers all strands of discrimination and we therefore welcome the introduction of this provision. In addition to the extra protection that such a duty will provide, we believe that a unified equality duty sends an important message about the universality and inalienability of the principles of equality and non-discrimination. We also believe that a unified duty will help to guard against the creation of a hierarchy between equality strands. We do not think that equalities legislation should prioritise one group over another. That is, of course, not to say that those seeking equalities protection should be able to use the protection afforded to them to discriminate against others. We believe that a unified equality duty which promotes the equality of opportunity for individuals will best incorporate the overarching human rights approach to non-discrimination.

11. The public authorities that are bound by this duty include Ministers, government departments, the armed forces, the NHS, local government, educational bodies and the police (see Schedule 19). Who is and is not included as a public body can be amended by an order (clause 145), and we would once again caution against the excessive use of secondary legislation in this way. We also welcome the fact that persons exercising public functions, who are not themselves public authorities, must have due regard to the public sector equality duty when exercising those functions (clause 143(2)).

POSITIVE ACTION

12. Clauses 152 and 153 cover positive action. Liberty notes that the inclusion of clause 152 extends the positive action provisions beyond what was previously muted. Clause 152 would represent a significant departure from measures that can currently be taken in relation to disadvantaged groups. One of the examples cited in the Explanatory Notes is: "Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them". Liberty hopes that over the Bill's passage parliamentarians will fully examine the full implications of this proposal, in particular whether or not clause 152 may result in unintended consequences.

13. Liberty welcomes the introduction of clause 153 which will allow employers to take under-representation into account when selecting between two equally qualified candidates. Currently, positive action is allowed under existing discrimination law, both at EU and UK level. Unlike positive discrimination, positive action aims to provide a level playing field—the idea being that historically disadvantaged groups can then compete on the same terms for jobs or access to services. Positive discrimination can be distinguished on the grounds that it involves recruitment or promotion decision-making based primarily on the basis of a characteristic, irrespective of whether the person is the best candidate for the job.

14. Positive action is specifically permitted under EC law.[215] The European Court of Justice has held that a provision similar to that contained in clause 153 would be lawful as long as the two candidates are initially compared with one another on an objective basis.[216] Under existing UK law employers can target a particular under-represented group through advertising, training or mentoring schemes.[217] However, the legal position as regards priority selection for an equally qualified candidate in an under-represented group has so far been unclear. The Government has previously highlighted that this has led to confusion amongst employers as to how positive action can be used in practice. Gloucester Police have, for example, in the past confused the positive action/positive discrimination distinction by de-selecting 108 white male applicants and considering less qualified minority ethnic applicants for positions within the force.

15. The government has made clear that clause 153 aims to address historical disadvantage suffered by certain groups as well as protect employers who may wish to balance their workforces and promote diversity. Indeed, few would argue that structural disadvantage does not still exist in the UK. While clause 153 may extend slightly the positive action remit, we would stress that it does not represent any grand departure from the existing discrimination framework. Indeed, as many commentators have pointed out, the law in this area is currently unclear and the number of situations in which employers are faced with two equally qualified candidates is rare. Discrimination in the workplace is still rife and if positive action/positive discrimination measures exist on a continuum (with help for under-represented groups at one end and discrimination on their behalf at the other) this proposal is fairly modest. Clarification of the law will also protect employers who try to balance their workforces from the threat of discrimination claims.

16. We would also stress that while this proposal has been depicted and perceived by many as advantaging only women and minority ethnic employees,[218] it is worth noting that as this is expressed in gender and race neutral terms this could allow re-balancing in any workplace where under-representation is established. This means that it will not always be women and minority ethnic groups that will feel a benefit. Sectors where, for example, white men are under-represented (such as the teaching sector) would also be able to use the power to rebalance the workforce.

EXCEPTIONS

17. There are a number of exceptions to the discrimination provisions contained within the Bill. The main exceptions are found in Schedules 3 and 23. While there is clearly a need for certain well-defined exceptions to be included in the Bill, we have some concerns with how broad some of these exceptions are and, in particular, the fact that many of these exceptions will be set out in secondary legislation, so it is impossible to know what they will contain. For example, Schedule 1, paragraph 1 provides that Regulations may prescribe a condition to be, or not to be, an impairment for the purposes of determining what is a disability. Paragraph 31 of Schedule 3 provides that a Minister may amend the Schedule, which sets out exceptions to the prohibition of discrimination in the provision of services and public functions, by an order either to add to, vary or omit an exception in relation to a disability, religion or belief or sexual orientation. The order could also add, vary or omit an exception in respect of the exercise of a public function on all of the other applicable grounds (except age, for those over 18). There is also a very broad power in clause 191 which allows a Minister to make an order to harmonise UK legislation with a European Community law. As Liberty has consistently stated, secondary legislation should not be used to amend primary legislation. Instead amendments to legislation should be allowed to be properly debated and considered by Parliament with the ability for amendments to be proposed and made by Parliament. If not, it becomes the Executive branch of government that wields the most power rather than democratically elected representatives.

Disability and immigration

18. Schedule 3, paragraph 16 provides that the prohibition on discrimination in the provision of services and in the exercise of a public function does not apply to immigration decisions to refuse entry clearance, or to refuse, cancel or vary leave to enter or remain in the UK, if necessary for the public good. This effectively means that a person will not discriminate against a person by refusing entry into the UK if the person has a disability, or if he or she is required to leave the UK because of a disability. This is a new exception. While it is understandable that some people may be refused entry into the UK because it is necessary to protect the health of the general public (for example, because that person has a contagious disease), this provision goes much further and applies to all disabilities simply if it is "necessary for the public good". This could mean that a non-citizen who develops cancer could be expelled from the UK simply because it is in the public good to do so, as the cancer treatment will need to be paid for by the NHS, regardless of how long that person may have been resident in the UK. It could also mean that a family with a child with a disability could be refused entry on the basis that the child will be a cost to the public health system over time. This is a controversial clause that urgently needs proper parliamentary scrutiny, despite being hidden away in a paragraph in a Schedule.

Religion and immigration

19. Similarly paragraph 18 of Schedule 3 provides that the prohibition on discrimination on the ground of religion or belief in the provision of services and in the exercise of a public function does not apply to immigration decisions to refuse entry clearance or to refuse or cancel leave to enter or remain in the UK, if the person's exclusion is conducive to the public good or to vary such leave if it is undesirable to permit the person to remain in the UK. This effectively means a person can be refused entry or expelled from the UK on the basis of their religion or belief if to do so is considered conducive to the public good. It is clear that there may be occasions on which a person might be excluded from the UK on the basis of the public good, for example where there is evidence that the person may incite people to commit violence. Exclusion on this basis would not be discriminatory because it would be exclusion because of the person's actual or suspected behaviour. A decision taken to exclude a person on the basis of the public good should be restricted to whether or not that person is suspected of holding extreme and violent views, irrespective of religion. There should therefore be no need for this exception (nor the exception on the basis of religion contained in paragraph 2 of Schedule 18 in relation to the public sector equality duty).

SECURITY SERVICES AND NATIONAL SECURITY

20. There are a number of provisions in this Bill that exclude provisions from applying to the security services or provide exemptions on grounds of national security. For example, clause 185 provides that a person will not contravene anything in the Bill if it was done for the purpose of safeguarding national security and is proportionate to that purpose. Moreover, paragraph 5 of Schedule 3 provides that there are no grounds for discrimination in the provision of services or in the exercise of a public function if done by the Security Service, the Secret Intelligence Service, the Government Communications Headquarters (GCHQ) or a part of the armed forces assisting the GCHQ. Clause 111 also provides that people (including the claimant or pursuer) can be excluded from proceedings in relation to a discrimination claim if it is expedient to do so in the interests of national security. No particular reasons are given for this broad and blanket application of rules other than use of the term "national security". This government has played fast and loose with the broad "national security" justification in recent times. Liberty hopes that parliamentarians will reflect and consider whether such justifications are legitimate or necessary in the sphere of equalities protection.

CONCLUDING OBSERVATIONS

21. There is much to be welcomed in this Bill and we applaud the government for introducing this important piece of consolidating legislation. Above we have outlined many of the areas in the Bill which we welcome, as well as areas in which we believe there is room for improvement. In addition to our comments above we also particularly welcome clause 73, which empowers regulations to be made requiring information to be published in order to ascertain whether in larger workplaces there are differences in the pay of male and female employees. According to the Equalities Review[219] published in 2007, the gender pay gap, at present rates of change, will not close until 2085.[220] Liberty considers that utterly unacceptable. Although there is nothing in clause 73 that will address structural and entrenched forms of pay disadvantage, it is a step along the way to identifying whether there are unjustified pay differentials. We acknowledge that discrimination is not the only the cause of unequal pay but disadvantage associated with gender—including discrimination—are the causes of unequal pay. Voluntary measures have not worked, as the statistics demonstrate. We also welcome the extension of the ability of the Secretary of State to give directions to a school to comply with duties not to discriminate under clause 82. This currently only applies in relation to sex discrimination but will now appropriately apply to all protected characteristics. Finally, Liberty also supports clause 118 which empowers an employment tribunal to make wider recommendations in discrimination cases rather than just in respect of the individual claimant.

200 See for example S and Marper v UK; R (on the application of S) v Chief Constable of South Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire [2003] 1 All ER 148; Grant v United Kingdom (App. No. 32570/03) [2006] All ER (D) 337; Goodwin v UK (App No 28957/95) [2002] All ER (D) 158; Richards v Secretary of State for Work and Pensions [2006] 2 CMLR 49; A v Secretary of State for the Home Department (SSHD) (No 2) [2005] UKHL 71 Back

201 We note that this Bill, when enacted, will not affect the compulsory retirement age (which involves clear age discrimination)-Schedule 22 protects anything done pursuant to a requirement of an enactment in respect of age. Back

202 See Age Concern England, "How Ageist is Britain?", 2005, available at: http://www.ageconcern.org.uk/AgeConcern/3DE4E64AB5874330A11C1AB7790587BC.asp Back

203 Note, age discrimination (for both under 18s and over 18s) does not apply to the disposal, management and occupation of premises (see clause 30) and the provision of education in schools (clause 79). Back

204 See Statement in the House of Commons on 26 June 2008 by Harriet Harman, Minister for Women and Equality, Hansard Column 504 Back

205 See Making the case: why children should be protected from age discrimination and how it can be done: Proposals for the Equality Bill, Young Equals, 2009, available at: http://www.crae.org.uk/assets/files/Making%20the%20Case.pdf Back

206 Ibid, see pages 8-9 and 10-11. Back

207 See Explanatory Notes at paragraph 603. Back

208 In re P (Adoption: Unmarried couple) [2008] UKHL 38; [2008] WLR (D) 198. Back

209 Under article 14 of the European Convention on Human Rights, which requires human rights be provided without discrimination. Back

210 See sections 4 and 6 of the Equal Opportunity Act 1995 available at: http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf/a12f6f60fbd56800ca256de500201e54/1F974B70EA40DB6ECA25750500811480/$FILE/95-42a055.pdf Back

211 See Guidance on the Education of Teenage Parents, 2001, DfESS/0629. Back