Memorandum by Unison
PRE-LEGISLATIVE SCRUTINY OF THE EQUALITY
BILL
INTRODUCTION
UNISON is Britain's largest trade union with
1.3 million members. They work in a range of public services.
We have the highest membership of any trade union in the health
service, local government and education. We also have members
in the transport and utilities sectors.
Most of our membership is female and we have
members who come from a variety of ethnic and religious backgrounds.
Our membership also reflects the proportion of the wider population
who are from the lesbian, gay, bisexual and transgender communities.
A significant number of our members are disabled.
The Joint Committee on Human Rights (JCHR) has
invited interested groups and individuals to submit evidence on:
— The significant human rights issues likely
to be raised by the Bill.
— Whether the Bill presents opportunities
to enhance protection of human rights.
It is difficult to respond to these questions
at this time because the Government Equalities Office (GEO) has
not published to organisations outside government its detailed
proposals for the Bill. The White Paper, Framework for a Fairer
Future: The Equality Bill, published in June 2008, merely
summarised the GEO's position on five issues, including a new
equality duty on public bodies, extended scope for positive action,
powers to extend protection against age discrimination, and strengthened
enforcement, giving a broad indication of the line the government
was intending to take. More helpful was the 208-page document
published in July 2008 containing the government's response
to the 2007 consultation on the Discrimination Law Review's
findings and legislative proposals. From this document it is possible
to have a clearer view of how the government will approach at
least some potentially problematic issues.
However, in the current climate, when there
are stronger calls for the relaxation of regulation of private
business as employers or as providers of services (other than
financial services), as well as possible reductions in funds available
for public services, UNISON is concerned that there is a real
possibility that aspects of the anticipated Equality Bill may
be diluted or postponed.
Nevertheless, working from what the government
has indicated, there are human rights issues that the proposed
measure could raise as well as ways in which the Bill could enhance
human rights.
This submission is organised under the following
main headings: civil and political rights; the primacy of discrimination;
balancing rights; the right to participation; positive action;
children's rights; multiple discrimination; and harassment.
AN INCLUSIVE
APPROACH TO
HUMAN RIGHTS
PROTECTION
Equality has underpinned human rights since
the UN Declaration of Human Rights in 1948. In the UK, there is
a perception that "human rights" are concerned primarily
with civil and political rights, based on the European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR),
incorporated into UK law by the Human Rights Act. On the other
hand, UK equality and anti-discrimination legislation has focused
mainly on economic and social rights. There is nothing to suggest
that in its proposals for an Equality Bill the government is intending
to deviate from this well-trod path.
Therefore the significant human rights gap,
so far as the content of the Equality Bill is known, is lack of
reference to discrimination in relation to important civil and
political rights. Indeed, if aspects of existing legislation are
replicated in the Equality Bill, certain civil and political rights
will be explicitly excluded from protection against discrimination
and/or for application of the race, disability or gender equality
duties.
Currently, the prohibition of discrimination
in respect of public functions under some or all of the equality
enactments (on all grounds except age) does not apply to any of
the security services agencies, judicial functions or anything
done on behalf or on instructions of a person exercising judicial
functions, anything done to reach a decision not to prosecute,
and certain key immigration control functions. Many of these functions
can involve civil and political rights protected under the ECHR
and other international human rights instruments.
UNISON can see no good reason why on any of
the grounds otherwise protected under the Equality Bill claims
of discrimination in respect of the rights or freedoms within
the ECHR should not be capable of challenge under the Equality
Bill as well as under Article 14 of the ECHR.
STATUS OF
UK PROTECTION AGAINST
DISCRIMINATION
Article 26 of the International Covenant
on Civil and Political Rights (ICCPR) requires all States Parties
to use the law to prohibit any discrimination and to guarantee
to all persons equal and effective protection against any discrimination
on any ground. While Article 4 of the ICCPR enables States
Parties in time of extreme public emergency threatening the life
of the nation to derogate from certain of their obligations under
that Covenant, this is permitted "provided such measures
are not inconsistent with their other obligations under international
law and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin."
However, UK anti-discrimination legislation
has never given primacy to protection against discrimination over
other legislation.
Exceptions to discrimination law
The provisions of the original Race Relations
Act (RRA) were subject to any primary or secondary legislation
and orders to comply with ministerial requirements passed or made
before or after the RRA came into force (s.41). In order to comply
with the EC Race Directive 2000/43 Article 14 the RRA
was amended so that that broad exception applied only in relation
to colour and nationality. Exceptions for primary and secondary
legislation, whatever the content, are in s. 51A Sex Discrimination
Act 1975 (SDA), s.59(1) Disability Discrimination Act 1995 (DDA)
in s. 27 Employment Equality (Age) Regulations 2006 and
in s.56 Equality Act and Reg. 12 of the Equality Act
2006 (Sexual Orientation) Regulations 2007.
The government (often ignoring obligations for
equality impact assessments) has therefore a relatively free hand
to legislate in ways that may conflict with its own anti-discrimination
legislation.
EXCEPTIONS—BALANCING
DIFFERENT RIGHTS
The Discrimination Law Review included, as Annex
A, three and a half pages of exceptions to protection against
discrimination that the government considers should be retained.
In response to consultation the government will have received
comments regarding all or some of these exceptions. To date the
only conclusion that is known is that the government intends to
have a genuine occupational requirement as the basic exception
in relation to employment and a list of specific exceptions outside
the field of employment.
Achieving Balance: the example of faith schools
It is not clear whether the Equality Bill will
retain, in relation to employment, the further exception relating
to the "religious ethos" of the employer. Under current
law (Employment Equality (Religion or Belief) Regulations 2003)
any employer organisation, which is not of itself a religious
organisation but which purports to have an ethos based on religion
or belief, is able to make being of a particular religion or belief
a "genuine occupational requirement". Even wider is
the exception (Reg. 39) that enables section 58 to 60 of
the School Standards and Framework Act 1998 to override prohibition
of discrimination on grounds of religion or belief in relation
to employment in faith schools. It is also not clear whether the
Equality Bill will replicate the equally wide exceptions for faith
schools in the Equality Act 2006, section 52(4)(k), in relation
to their curriculum (potentially allowing the teaching of prejudice
in relation to other faiths or different sexual orientations)
, admissions, or transport, and for non-commercial organisations
which have religion or belief as some part of their purpose (s.57)
which may discriminate in relation to participation, provision
of goods, facilities or services, or use of premises.
UNISON questions whether the current forms of
privileging of religion or belief over equality reflect the right
balance between freedom of belief rights and equality rights.
This should be re-examined before the Equality Act becomes law.
RIGHT TO
PARTICIPATE IN
THE CONDUCT
OF PUBLIC
AFFAIRS
Many international human rights instruments
which include rights to equality refer directly or indirectly
to the rights of all persons to participate fully in the conduct
of public affairs. Case law under the RRA concerning race discrimination
in the selection of candidates for political office has established
that the main provision in the RRA that applies to political parties
is section 25, prohibiting discrimination by organisations with
25 or more members. There are no parallel provisions in all
of the other equality enactments. However, there are concerns
about inequality, discrimination and under-representation of different
groups among elected members of local authorities, UK Parliament
and the European Parliament. The government has not indicated
any proposal to ensure all activities of political parties are
within the scope of the Equality Act's anti-discrimination provisions.
If it were to do so, then positive action provisions could apply
to political parties. This could have an effect on the adoption
of women-only or ethnic minority-only shortlists.
POSITIVE ACTION
IS NOT
DISCRIMINATION
Positive action equality measures are contained
explicitly or implicitly within all of the major international
human rights instruments (see below).
These are explicit in the International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD)
and the Convention on the Elimination of Discrimination Against
Women (CEDAW), the Convention on the Rights of Persons with Disabilities
(CRPD) and ILO Convention 111. They are implicit as interpreted
in General Comments on the International Covenant on Civil and
Political Rights (ICCPR) (see General Comment 18, 37th Session)
and, for example, Fact Sheet No.16 regarding the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
All such instruments recognise that special
measures will be necessary to overcome historic patterns of discrimination
and exclusion and that such measures are not considered discrimination.
Special measures should not lead to the maintenance of separate
rights for different groups nor should they be continued after
their objectives have been achieved.
It is not clear how the government intends to
legislate to permit positive action within the Equality Act. It
has said it will adopt the approach within the EC directives as
well as a "tie-break" provision for employers where
there is evidence of under-representation.
Its proposals outside the field of employment
appear to be more limited and would fall far short of the approach
within the various human rights instruments. It should be noted
that under the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD) not only is positive
action permitted and not to be treated as discrimination but States
Parties have a duty to take special measures "to ensure the
adequate development and protection of certain racial groups or
individuals belonging to them, for the purpose of guaranteeing
them the full and equal enjoyment of human rights and fundamental
freedoms".
UNISON believes that it may be appropriate to
consider a provision along these lines as part of the equality
duty that the Equality Act will impose on public bodies.
EXCLUSION OF
CHILDREN'S
RIGHT TO
NON-DISCRIMINATION
The government has announced that the Equality
Bill will empower the Secretary of State to use secondary legislation
to prohibit age discrimination in areas outside the field of employment.
UNISON is concerned that this will exclude the possibility of
amendment or any significant debate on whether any human rights
issues arise or are inappropriately excluded from the proposed
regulations.
More significant, however, is the decision that
such legislation will provide protection against discrimination
and harassment in access to goods, facilities and services, education,
and exercise of all other public functions only for persons
over age 18.
This directly conflicts with all of the international
instruments, none of which includes an age bar.
Children's rights: international instruments
Instruments with broad coverage such as the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and
the International Covenant on Civil and Political Rights (ICCPR)
and the ECHR, as well as those focusing on particular grounds
such as the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) or the Convention on the
Elimination of Discrimination Against Women (CEDAW) will be interpreted
to apply to persons of all ages, while the EU Charter of Fundamental
Rights and the Convention on the Rights of Persons with Disabilities
(CRPD) specifically address rights of children.
The Convention on the Rights of the Child (CRC)
applies to a wide range of civil and political and economic and
social rights that are, or should be, within the scope of the
Equality Bill, including health, education, treatment as a refugee,
non-exploitation, arrest and detention as well as specific prohibition
of harassment.
MULTIPLE DISCRIMINATION
Following consultation the government appears
to be willing to consider how complaints of multiple discrimination
could be dealt with by a court or tribunal. There appears to be
continuing reluctance fully to accept that the Equality Bill should
recognise and incorporate discrimination on multiple grounds in
its definitions of discrimination and harassment, although this
is clearly the reality for many people. The fact that discrimination
occurs on more than one ground is clearly recognised in many of
the international human rights instruments, for example, CRC,
CEDAW and CRPD.
PROTECTION FROM
HARASSMENT AND
FREEDOM OF
EXPRESSION
Most of the human rights issues that arise in
the context of the Equality Bill are related to gaps, omissions
or exclusions in anti-discrimination obligations. But there is
also the slightly different question of how harassment on grounds
of religion or belief should be treated in anti-discrimination
legislation.
Harassment: the current position
There are blatant inconsistencies. Under the
Employment Equality (Religion or Belief) Regulations 2003, harassment
within the field of employment is a specific unlawful act. The
definition of harassment in these regulations is identical to
the definition of harassment in the parallel Employment Equality
(Sexual Orientation) Regulations 2003, as well as in the RRA,
(as amended by the Race Relations (Amendment) Regulations 2003).
These provisions were necessary to bring the UK legislation in
line with the EC Employment Framework Directive 2000/78 and
the EC Race Directive 2000/43. Within the RRA this definition
of harassment applies on grounds of race and ethnic and national
origin in relation to all activities within its scope: not only
employment, but also in education, management of premises, access
to goods, facilities and services and exercise of other public
functions.
Discrimination on grounds of religion or belief
outside the field of employment was enacted as Part 2 of
the Equality Act 2006. However, because of concerns about freedom
of expression, this Act does not include a separate unlawful act
of harassment on grounds of religion or belief. And the Equality
Act (Sexual Orientation) Regulations 2007 similarly lack
such a provision. Harassment on grounds of religion or belief
or sexual orientation in an area outside of employment and further
and higher education can form part of a complaint of unlawful
treatment in the form of direct discrimination, but only where
a suitable comparator can be identified. In both cases there was
no European directive driving the legislation as there had been
for the employment-related regulations.
There is now a proposed Directive on implementing
the principle of equal treatment between persons irrespective
of religion or belief, disability, age or sexual orientation which,
in its current form, would require harassment on all four of these
grounds to be explicitly prohibited.
From a human rights perspective, as well as
a perspective of rationality or legislative clarity and certainty,
the present position is unsatisfactory. UNISON questions why harassment
at school, as a passenger or as a hospital patient should be so
different from harassment in an office or on an assembly line
or at a college. Is the balance between the need to protect individuals
from words or acts that violate their dignity or create intimidating,
hostile, degrading, humiliating or offensive environments and
to protect fundamental right to freedom of expression so different
in these different types of situations that legal rights should
be differently defined?
UNISON
November 2008
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