Supplementary memorandum submitted by
National Aids Trust (NAT)
INTRODUCTION
1. NAT (National AIDS Trust) is the UK's
leading independent policy and campaigning charity on HIV. NAT
develops policies and campaigns to halt the spread of HIV and
improve the quality of life of people affected by HIV, both in
the UK and internationally.
2. NAT welcomes the chance to submit evidence
to the Joint Committee on Human Right's scrutiny of the Equality
Bill.
3. Throughout this submission NAT refers
to the UN Convention on the Rights of Persons with Disabilities.
Article 1 sets out the Purpose of the Convention:
Article 1
Purpose
The purpose of the present Convention is to
promote, protect and ensure the full and equal enjoyment of all
human rights and fundamental freedoms by all persons with disabilities,
and to promote respect for their inherent dignity.
4. NAT believes the Equality Bill presents
an opportunity to ensure that UK equality legislation reflects
these commitments.
IMMIGRATION EXEMPTIONS
5. Schedule 3, Part 4, Paragraph 16 of
the current Equality Bill creates a new exception where disability
discrimination is not prohibited where it is on the ground that
doing so is "necessary for the public good".
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."
6. Although it is correct to state that
previously direct discrimination was not prohibited in the provision
of services or exercise of a public function, disability related
discrimination was prohibited in these areas apart from where
"a proportionate means of achieving a legitimate aim"
or in certain limited circumstances. The new exception on immigration
is replacing the provision to justify disability discrimination
in certain situations (see section 21D, DDA 2005) with a blanket
exclusion. Under the new exception there is no requirement of
proportionality and it is not clear what could fall within the
scope of "necessary for the public good".
7. NAT is concerned that the exception as
it stands could be used to both exclude disabled people on grounds
of cost (for example the additional cost of allowing a migrant
with learning difficulties to enter or remain in the UK) and also
on grounds of public health (allowing migrants living with HIV
to enter or remain in the UK) in the interest of the "public
good". In terms of HIV, this could have potential individual
and public health implications if people feel unable to disclose
their HIV status or access treatment. It may also discourage migrants
from seeking an HIV test, with obvious public health consequences.
8. The exception seems to be directly opposed
to the policy set out in the UK Border Agency's Equality Scheme
which states: "Staff to ensure that asylum seekers are able
to ask for assistance, and know that particular needs can be indicated.
It should be made clear that disclosure of disability will not
be a negative factor in the consideration of cases."[229]
9. The Government proposed a similar general
reservation to the UN Convention on the Rights of Persons with
Disabilities to retain the right to introduce wider health screening
for applicants entering or seeking to remain in the UK. In the
Joint Committee on Human Rights' report on the UN Convention,
it notes that the Government "has not provided an adequate
explanation of its view that the proposed reservation is necessary"
and they go onto "recommend that the Government abandon this
reservation."[230]
10. NAT is particularly concerned about
this new provision given the Australian precedent. The Australian
Migration Act is exempt from the Disability Discrimination Act
(section 52). Under the Australian system, there are several different
categories under which people can apply to enter the country and
within many of these (including refugee/humanitarian entrants),
the fact that someone is disabled is offset against the value
a potential migrant or refugee is thought to have for the community.
Disabled people under go a health and medical check-up and the
anticipated costs associated with a disability are offset against
the anticipated contributions. The Multicultural Disability Advocacy
Association of New South Wales has provided numerous examples
of the impact of this system on disabled people which can separate
them from their families.
Recommendation: The exemption around immigration
in relation to services and public functions should be removed.
Recommendation: If the exemption is not
removed, it should be modified to return to the approach under
section 21D of the DDA, requiring a legitimate aim and proportionality
in disability discrimination.
DISABILITY, HUMAN
RIGHTS AND
EMPLOYMENT
11. Despite the fact discrimination against
disabled people in employment is unlawful, people living with
HIV still face discrimination; employers often do not understand
that today someone living with HIV can live a long and active
life and have a fulfilling and busy career. This lack of understanding
about the advancement of treatment means that many employers will
discriminate against an HIV-positive person, even if they are
the best candidate for the job. In addition to health-related
discrimination, people living with HIV often faces discrimination
in relation to other prejudices such as homophobia and racism.
12. NAT believes the Equality Bill presents
an opportunity for the Government to take further steps to bring
an end to this discrimination, and thereby meet its obligations
under Article 27 of the UN Convention on the Rights of Persons
with Disabilities, and Article 6 of the International Covenant
on Economic, Social and Cultural Rights (ratified by the UK, but
not incorporated into UK law) (ICESCR).
Article 27 of the UN Convention on the Rights
of Persons with Disabilities
State Parties shall safeguard and promote the
realization of the right to work, including for those who acquire
a disability during the course of employment, by taking appropriate
steps, including through legislation, to, inter alia:
(a) Prohibit discrimination on the basis of disability
with regard to all matters concerning all forms of employment,
including conditions of recruitment, hiring and employment, continuance
of employment, career advancement and safe and healthy working
conditions;
Article 6 of the ICESCR
States recognise the right to work, which includes
the right of everyone to the opportunity to gain his living by
which he freely chooses or accepts, and will take appropriate
steps to safeguard this right.
13. NAT proposes that the Government should
use the opportunity the Equality Bill presents to enhance the
protection of disabled people's rights, by prohibiting the use
of pre employment health questionnaires before the offer of a
job has been made. People living with HIV have significant concerns
about discrimination during the recruitment process, and the Government's
planned reforms of Incapacity Benefit may result in more people
living with HIV going through recruitment processes. If employers
were only permitted to ask people to fill out a health questionnaire
after the offer of a job had been made, this would guard against
discrimination and make discrimination easier to prove.
Recommendation: The Equality Bill should
prohibit the use of pre employment health questionnaires before
the offer of a job has been made to protect disabled people from
discrimination and make discrimination easier to prove.
MULTIPLE DISCRIMINATION
14. HIV in the UK disproportionately affects
two groups which experience inequality and discrimination—gay
and bisexual men, and black Africans—and amongst black Africans,
women are disproportionately affected. It is often hard to disentangle
HIV discrimination from the homophobia, racism, anti-immigration
prejudice and sexism which so many people living with HIV also
experience. The Equality Bill presents an opportunity to recognise
this and see disability in a broader discrimination context.
15. As the law stands people can only bring
a claim against someone that has treated them unfairly because
of one particular characteristic, but as set out above, there
are examples where people are discriminated against for a number
of reasons.
16. The Preamble to the UN Convention highlights
the importance of considering the issue of multiple discrimination:
The States Parties to the present Convention…
(p) Concerned about the difficult conditions
faced by persons with disabilities who are subject to multiple
or aggravated forms of discrimination on the basis of race, colour,
sex, language, religion, political or other opinion, national,
ethnic, indigenous or social origin, property, birth, age or other
status
17. NAT therefore welcomes the Government's
commitment to look at the question of bringing claims involving
multiple discrimination. However, we are disappointed by the limitations
of the Government's current proposal.
18. NAT are concerned that the Government's
current multiple discrimination proposals only apply to direct
discrimination. We echo the Equality and Diversity Forum's concern
that this will cause problems for courts and tribunals hearing
these cases. It is not always clear until the full facts are heard
whether a case under consideration is direct or indirect (whether
the resultant discrimination is caused directly or by the imposition
of a provision, criterion or practice). We believe that once it
is accepted that people are subjected to discrimination on more
than one ground, there can be no good reason for excluding claims
of indirect discrimination or harassment.
Recommendation: The Government should
extend the current proposals so that indirect discrimination and
harassment on more than one ground are covered.
19. NAT also regrets the limitation of the
current proposals to two grounds. There may be many cases where
people face discrimination on more than two grounds: an HIV positive
black African woman could be discriminated against because of
her race, disability and gender; an ethnic minority gay man living
with HIV could face discrimination because of his sexual orientation,
disability and race. Whilst NAT commends the Government for the
current proposals, limiting them to two grounds will needlessly
reduce their effectiveness.
Recommendation: The current proposal should
be amended to allow cases on multiple grounds.
20. However we recommend that if this current
limitation is retained, it should be revisited within two years
of this provision being introduced to consider whether the number
of grounds should be extended.
Recommendation: If the current proposal
is retained it should be revisited within two years of this provision
being introduced to consider whether the number of grounds should
be extended.
NAT
June 2009
229 http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingforus/Three-strand_Equality_Scheme.pdf) Back
230
Joint Committee on Human Rights, Twelfth Report: Un Convention
on the Rights of Persons with Disabilities: Reservations and Interpretative
Declaration, HL 70/HC 397, April 2009 Back
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