Memorandum submitted by Race on the Agenda
(ROTA)
1. ABOUT THIS
SUBMISSION
1.1 ROTA is one of Britain's leading social
policy think-tanks focusing exclusively on issues that affect
Black, Asian and minority ethnic (BAME) communities. ROTA aims
to increase the capacity of BAME organisations and strengthen
the voice of BAME communities through increased civic engagement
and participation in society.
1.2 As part of ROTA's work on the Bill,
we have formed a national coalition of BAME and other third sector
organisations that are generally supportive of our views. The
36 Winning the Race Coalition members can be found at http://www.rota.org.uk/pages/WTRC.aspx
1.3 This memorandum is submitted by Dr.
Theo Gavrielides, Chief Executive of Race on the Agenda, tel 020 7902 1966,
mobile: 07720057750, theo@rota.org.uk Waterloo Business Centre,
Unit 217 & 208 117 Waterloo Road, London SE1 8UL.
2. OPENING STATEMENT
2.1 Race on the Agenda (ROTA) warmly welcomes
the Single Equality Bill, and hopes that it can provide the legislative
tools to tackle persistent inequalities such as those faced by
Britain's Black, Asian and minority ethnic (BAME) communities.
ROTA also hopes that through the Bill a culture of respect for
equality and dignity is created and mainstreamed in providers
of public services (whether public, private or voluntary) and
in society.
3. SCOPE OF
THE BILL
3.1 ROTA was disappointed with the limited
scope of the Bill and of the Public Sector Equality Duty (Clause
143) in particular. The duty applies to the listed "core
public authorities" and to an ambiguous list of "hybrid
public authorities". The former has some obvious omissions
such as the Police. The latter is defined as those authorities
exercising "public functions" as this is developed under
the Human Rights Act 1998.
3.2 After five leading cases,[231]
a proposed Private Members Bill, pressure from the Parliamentary
Joint Committee on Human Rights[232]
(JCHR) and several promises by government that the legislative
confusion and misinterpretation of Section 6(1) of the Human Rights
Act will be addressed, the Bill presents a unique opportunity
that should not be missed.
3.3 In 2004, the JCHR concluded that the
test being applied by the courts was "highly problematic"
as in many cases it resulted in an organisation "standing
in the shoes of the State", but without the State's legal
responsibilities under the Human Rights Act. That had led to a
"serious gap" in the protection that the Act was intended
to offer.
3.4 Cases such as the latest YL v Birmingham
(2007) suggest that if the Bill inherits the confusion caused
by Section 6(1) of the 1998 Act, some of the most vulnerable
sections of British society will remain unprotected. This is not
in line with the Equalities Review.
3.5 The YL case involved an 84-year old
lady with Alzheimer's who remained unprotected due to the limited
definition of "public functions" under the 1998 Act.
300,000 older people in care were affected by this case.
The numbers of BAME elders receiving social care services that
are contracted out by local authorities are rather significant
particularly when compared to the White British population. In
addition, BAME elders have additional needs which if ignored might
run the risk of having their dignity and respect breached (eg
cultural, language, dietary, health and lack of family support
and friends networks). This also applies to children in care and
children and young people in Academies. Again the numbers of Black
boys and girls in these services are proportionately higher than
the White British population.
3.6 We propose an amendment to include the
JCHR definition of "public functions" (29th Report 2008).
3.7 We understand that the Equality Bill
is a Public Bill and that there is intention to consult about
how to use procurement as an equality tool. This is welcomed.
The amendment in the Health and Social Care Bill was also welcomed.
However, the gap created through the Human Rights Act is still
not addressed.
3.8 We do not believe that consistency can
be achieved through guidance or secondary legislation. We are
not proposing to list hybrid public authorities, but to provide
a clear definition of public functions which is in line with the
29th Report of the JCHR 2008.
3.9 We strongly agree with the Chair of
the JCHR, Andrew Dismore, who said to the House: "Guidance
alone cannot solve the problem; in reality is has proved utterly
useless … Guidance can never be a substitute for
the direct application of the Act to service providers" (18 Dec
2007: Column 739).
4. PURPOSE CLAUSE
4.1 We believe that the Bill would benefit
from a purpose clause that will allow courts to easily identify
the overriding objective of the statute. The applicability of
several provisions of the Act will be seen through test cases,
and we are concerned that without purposive interpretation that
is based on a clear overriding objective of the statute, the letter
of the law might be narrowly applied. There are numerous examples
of UK legislation that can be provided as examples eg Criminal
and Civil Procedure Rules.
4.2 We propose an amendment to include a
purpose clause in the Bill.
5. ENFORCEMENT
AND SECONDARY
LEGISLATION
5.1 Several provisions of the Bill are reliant
on secondary legislation and non-statutory guidance. The Equality
and Human Rights Commission (EHRC) is mentioned as one of the
bodies tasked with enforcement responsibilities. This is welcomed.
From our RRA experience, in order to move away from the process
focused approach to race equality and equality, and ensure consistency
of application, bodies such as the regulators, inspectorates and
auditors need also to be clearly identified by the Act. This should
include the Audit Commission, the Healthcare Commission, the Commission
on Social Care Inspection and OfSted.
5.2 We proposed an amendment to include
the regulators and inspectorates.
6. POSITIVE ACTION
MEASURES
6. ROTA is pleased to see provisions which
aim to align EU legislation with domestic law. The proposed provisions
are modest and could be strengthened. Ten years on from the St
Lawrence Inquiry, ROTA has evidence to suggest that the recruitment,
retention and promotion of BAME staff particularly within certain
sectors is neither proportionate nor within the letter and spirit
of equality legislation. We also ask whether Clause 153(4) fully
reflects the scope for positive action permitted by EU law and
if, in practice, this provision will prevent employers from adopting
a general positive action strategy prior to making recruitment
decisions.
7. MULTIPLE DISCRIMINATION
7.1 We support the inclusion of provisions
to address multiple discrimination. Looking at case law pre 2004 it
was possible for someone to bring a case on multiple discrimination
grounds. After Bahl v Law Society (2004), cases that could only
be brought as multiple discrimination claims stopped.
7.2 We would argue that limiting the combination
to two characteristics is not the best way forward. However, we
understand that there are concerns that case law will increase.
We agree with the Equality and Diversity Forum that we should
not expect an increase of more than 5 per cent of the number
of cases brought. We would argue that the limitation to two grounds
only should be revisited within two years of this provision being
introduced to consider whether the number of grounds should be
extended.
8. FAITH SCHOOLS
8.1 On the issue of school admissions, we
also share the JCHR's concerns regarding public policy detriments
especially in relation to religious, racial and social segregation.
We would like the government to back up with evidence its argument
that discrimination in admissions is necessary to preserve a school's
distinctive religious ethos. We would question the compatibility
of a general exclusion and recommend that the matter is regulated
in a different way.
9. SOCIO-ECONOMIC
DUTY
9.1 It is our view that the proposed duty
is modest and lacks of practical significance particularly in
relation to enhancing and promoting human rights for individuals.
We are particularly concerned with the exclusion of individuals
subject to immigration control. We do not think that a general
exclusion clause is the right way forward in this regard.
10. CLAUSE 8 &
MARRIAGE/CIVIL
PARTNERSHIP
10.1 The Bill does not protect people who
are in long-term, significant relationships and suffer discrimination
or harassment as a result. We believe that this maybe in breach
of HRA. We would welcome evidence on the government's thinking
for this exclusion. We are concerned that a significant proportion
of BAME groups who chose long-term relationships as opposed to
civil partnerships or marriage will be excluded from protection.
We have evidence to suggest that this particular life style is
preferred among BAME communities particularly LGBT BAME groups
and those on low income.
11. FURTHER RESOURCES
231 Poplar Housing v Donoghue (2001), Heather v Leonard
Cheshire Foundation (2002), Hampshire v Beer (2003), Aston Cantlow
(2003) and YL v Birmingham (2007). Back
232
JCHR (2004) The Meaning of Public Authority under the Human Rights
Act, Session 2003-04. Back
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