Letter from the Chairman to Rt Hon Harriet
Harman QC MP, Secretary of State for Equality
DISCRIMINATION LAW REVIEW—A FRAMEWORK
FOR FAIRNESS: PROPOSALS FOR A SINGLE EQUALITY BILL FOR GREAT BRITAIN
My Committee has considered the Government's
Discrimination Law Review. This Committee and its predecessors
have long been advocating the introduction and enactment of unified
and comprehensive single equality legislation. The Committee sees
respect for equality and non-discrimination principles as integral
to the protection and promotion of human rights in the UK. Effective
and comprehensive anti-discrimination legislation is necessary
to give effect to the core human right to equality and non-discrimination.
We therefore welcome the Government's commitment to introducing
a single Equality Act. However, our consideration of the Discrimination
Law Review (DLR) Green Paper raises a number of questions or concerns
which we set out below. We would be grateful for your clarification
of these matters.
Q1. Will the Government publish an analysis
of the responses to the consultation paper and, if so, when?
Q2. Is it intended to publish a draft Equality
Bill and if not, why not?
Q3. When it is anticipated that legislation
based upon the consultation exercise will be introduced?
The DLR contains no proposals to link the proposed
single equality legislation with wider legal protection for equality
rights.
Q4. Was consideration given as part of the
DLR to the possibility of signing and ratifying Protocol 12 European
Convention on Human Rights, or any of the Optional Protocols to
the International Covenant on Civil and Political Rights, the
Convention on the Elimination of All Forms of Racial Discrimination
or the Convention on the Rights of Persons with Disabilities?
Q5. Was consideration given to the possibility
of enhancing discussion of equality and non-discrimination principles
in Parliament, perhaps for example via the use of some form of
statement of compatibility similar to that provided for in s.
19 Human Rights Act 1998 which would refer to the free-standing
equality right contained in Article 26 ICCPR and other human
rights instruments?
Extending the scope of discrimination law
The DLR suggests that the existing position
on discrimination based on perception and association should be
maintained, except for an extension of protection against discrimination
on the grounds of association with a transsexual person. The DLR's
proposals would mean that different standards of protection would
exist across the different equality grounds.
Q6. Why is it not proposed to extend protection
against discrimination based on perception to the grounds of disability,
gender or being a transsexual person, and protection against discrimination
based on association to the grounds of age, disability and gender?
Q7. What justifications exist for not extending
anti-discrimination law to prohibit discrimination on the grounds
of caring responsibilities?
The DLR does not discuss whether other grounds
should also be covered by anti-discrimination law.
Q8. Has consideration been given to extending
anti-discrimination legislation to cover the grounds of family
status, political opinion, "spent" criminal convictions,
socio-economic status and caste discrimination?
Q9. If so, why were these grounds not included
within the DLR?
Q10. What is the Government's assessment of
the extent of caste discrimination in the UK?
Part 3 of the consultation paper contains
a proposal to remove the protection against discrimination on
the grounds of marital status (originally provided for in the
Sex Discrimination Act 1975) and entry into a civil partnership
(introduced by the Civil Partnership Act 2004). The DLR suggests
that this protection no longer serves any real social need and
that it can lead to unintended and artificial consequences.
Q11. What is the justification for removing
the prohibition of discrimination on the grounds of marital and
civil partnership status? What negative consequences did the DLR
identify as potentially resulting from the prohibition of discrimination
based on the grounds of marital or civil partnership status?
There is currently no protection against discrimination
on grounds of genetic predisposition in British law. The Human
Genetics Commission (HGC) suggests that genetic testing may be
used to assess long-term health prospects in pre-employment health
checks in the future. The DLR concludes that there is no current
need to legislate to prohibit discrimination on grounds of genetic
predisposition. It considers this an issue that could be revisited
later, if necessary. The HGC, in its response to the DLR, argues
that there is "anecdotal evidence of genetic discrimination,
which constitutes an adequate justification for legislating now
to prohibit genetic discrimination."[256]
Q12. In light of the response of the HGC to
the consultation, does the Government now consider that a case
exists for the introduction of legislation to prohibit genetic
discrimination?
The DLR proposes to prohibit less favourable
treatment of a woman on grounds of pregnancy and maternity by
public authorities in the exercise of public functions, but to
exclude schools from the scope of any strengthened protection.
This exception may in certain circumstances result in less than
effective protection of the rights of children (who are also mothers)
to education under Article 2 of Protocol 1 ECHR, taken
together with Article 14 ECHR.
Q13. Why did the Government consider it necessary
to exclude schools from the proposed extension of protection against
discrimination on the basis of pregnancy and maternity?
Q14. How will it ensure that the rights of
young mothers to access education are protected?
The DLR queries whether there is any need to
retain an exception to allow insurers to treat people differently
on grounds of sexual orientation, where supported by sound actuarial
evidence, beyond the end of 2008.
Q15. Are there grounds for considering that
an extension of the exception permitting insurers to treat people
differently on grounds of sexual orientation, where supported
by sound actuarial evidence, is necessary after 2008?
Balancing measures
The DLR expresses concern about the slow rate
of progress towards giving everyone in society an "equal
chance of participation". It suggests that steps should be
taken to permit employers, public authorities and other organisations
greater scope to take "proportionate" positive action
to benefit under-represented groups, provided that such action
is based on a "sound analysis of the issues" and does
not "inadvertently introduce new and unjustifiable inequality
or disadvantage". The DLR does not propose to set out in
detail in legislation the "balancing measures" that
will be permitted, but instead it proposes to clarify the purposes
for which such measures can be taken (para. 4.46).
Q16. Please provide more detail as to the
type of permissible balancing measures that it may be possible
to implement if the approach suggested in the DLR is introduced
into legislation.
Political parties and candidate selection
The DLR proposes to extend the scope of the
provisions of the Sex Discrimination (Election Candidates) Act
2002. The Committee considered the provisions of the original
Sex Discrimination (Election Candidates) Bill (4th Report of Session
20001/02, HL 44/HC 406, 30 November 2001) and concluded that
they appeared to be in general conformity with human rights principles,
partially because the legislation contained a "sunset clause"
and was therefore time-limited. The proposals contained in the
DLR appear to be similar in nature to the provisions of the 2002 Act,
except that they would apply to ethnic minorities.
Q17. Please provide further detail of the
type and nature of the positive action measures that it may be
possible to implement if legislation is introduced to permit political
parties wider scope in taking voluntary positive action to ensure
greater participation in elections by candidates from ethnic minority
communities.
Positive equality duties
Perhaps the most significant proposals in the
DLR relate to the positive equality duties that have since 2000 been
gradually imposed upon British public authorities. At present,
positive equality duties involving the grounds of race, disability
and gender require public authorities to eliminate unlawful discrimination
and promote equality of opportunity in the performance of their
functions. The positive duties can be seen as important tools
for giving effect to positive obligations under international
and regional human rights instruments. The DLR makes extensive
proposals as to how the duties could be expanded, enhanced and
restructured. Elements of these proposals have attracted some
very sharp criticism in some responses to the DLR.
Q18. If the positive equality duties are restructured
in the manner proposed by the DLR:
a) Will public authorities no longer be required
to take action to eliminate unlawful discrimination and promote
equality of opportunity in the performance of all of their public
functions?
b) Will public authorities be able to select
by themselves which of their activities would be subject to the
full requirements of the duties?
c) Will conferring sole enforcement powers
in respect of the duties on the Equality and Human Rights Commission
mean that individuals could no longer bring judicial review proceedings
to secure implementation of the duties?
d) Will the public sector inspectorates continue
to have a role in monitoring how the duties are applied?
Public procurement, private sector equalities duties
and equal pay
The DLR suggests that specific equality duties
should not be imposed upon public authorities to promote equality
through public procurement, as was recommended in the final report
of the Equalities Review. Instead, the DLR recommends that public
authorities should be provided with clearer guidance on this issue.
Some respondents have argued that imposing precise duties on public
authorities in respect of public procurement could be a very influential
method of promoting equality of opportunity, and therefore of
giving effect to the positive obligations to take steps to eliminate
unjustified discrimination imposed by the international human
rights law instruments discussed in the previous section. Similar
criticism has also been directed by these respondents against
the DLR's proposals for promoting good equality practice in the
private sector. Certain respondents have called for the imposition
of "employment equity" duties upon parts of the private
sector or for companies over a certain size to report on their
progress towards achieving greater equality of opportunity. Others
have argued that employers over a certain size should be subject
to a requirement to conduct equal pay audits.
Q19. Was consideration given to designing
a system of employment equity, company reporting, and/or pay audit
requirements which might be suitable for British employers?
Q20. What reasons might exist for not introducing
such employment equity, reporting or pay auditing requirements?
Access to justice and effective dispute resolution
For protection to be effective, victims of discrimination
must be able to access courts and tribunal systems that can provide
a remedy.
Q21. Does the Government consider that existing
dispute resolution procedures in anti-discrimination cases are
sufficient to ensure adequate access to justice for victims of
discrimination?
Q22. Was consideration given to initiating
a comprehensive review of the entire system of dispute resolution
as it applies to anti-discrimination cases?
Multiple discrimination
There is no provision in law for "multiple
discrimination" claims. The DLR notes that it does not have
any evidence that people are "losing or failing to bring
cases because they involve more than one protected ground, and
would therefore welcome information about instances of this happening.
We will then consider whether there is a need to develop a proportionate
approach to any practical problems identified."
Q23. What evidence has been received in response
to the DLR's request for information on this issue and what is
the Government's view in the light of any such evidence?
Q24. In your view, do potential difficulties
exist in accommodating multiple discrimination claims within the
current anti-discrimination law framework? Was consideration given
to any specific proposals which might have addressed any difficulties
which might arise with such multiple discrimination claims?
Extending age discrimination
The DLR seeks views on whether protection against
age discrimination should be extended to cover the provision of
goods, facilities and services, premises, education or the exercise
of public functions. The Committee indicated its support for such
an extension in our recent report on The Human Rights of Older
People in Health Care (18th Session, HL 156-I/HC 378-I, 14 August
2007, para. 64).
Q25. What specific exceptions does the Government
consider need to be made to any extended prohibition on age discrimination,
and why?
Q26. What is the justification for the proposed
total exclusion of children under 18 from the scope of any
extended legislation?
Gender reassignment
In addition to implementing the requirements
of the Gender Directive (2004/113/EC) the DLR proposes to prohibit
direct and indirect discrimination on grounds of gender reassignment
in the exercise of public functions, subject to certain exclusions.
It proposes to retain the existing definition of gender reassignment.
In its scrutiny of the Gender Recognition Bill,
the Committee concluded that consideration should be given to
amending the sex discrimination legislation to make it unlawful
to discriminate against people in the fields of education, housing
and the provision of goods, facilities and services on the ground
that they have undergone, are undergoing or plan to undergo gender
reassignment (19th Report, Session 2002-03, HL 188-I, HC 1276-I,
20 November 2003, paras. 96-104).
Q27. Why may it be necessary to make provision
for exceptions for organised religion from the extension of protection
against discrimination on the grounds of gender reassignment?
Q28. Might the request for views in the DLR
on this issue result in the revision of existing exceptions that
apply to the activities of organised religions?
Q29. Why was it considered unnecessary to
include education in any extension of protection against discrimination
on the grounds of gender reassignment?
Q30. Was any consideration given to alternative
ways of defining gender reassignment?
Harassment
The DLR asks for views on the extension of explicit
harassment controls. It seeks views on what specific exceptions,
if any, should be included in any legislation that did extend
harassment controls, and whether harassment on grounds of religion
or belief should be treated differently from the other protected
grounds.
In its report on the Sexual Orientation Regulations,
(6th Report, Legislative Scrutiny: Sexual Orientation Regulations,
Session 2006-07, paras. 57-58), the Committee welcomed the inclusion
of harassment as a separate instance of unlawful discrimination
within the Northern Ireland Regulations, but called for the use
of a more precise and narrow definition of harassment, to reduce
the risk of incompatibility with the rights to freedom of speech
and freedom of religion and belief. These conclusions were cited
in the recent Northern Irish decision of Re The Christian Institute
and Others.[257]
In this case, guidance was given as to how such harassment provisions
could be interpreted to comply with the requirements of Articles
9 and 10 ECHR.
Q31. What are the Government's views on defining
and prohibiting harassment on the grounds of religion or belief,
in light of the judgment of Weatherup J. in Re The Christian Institute
and Others?
The DLR also raises the question of whether
a distinction should be drawn between harassment in a "closed"
environment where there is a special relationship (for example,
an employer-employee relationship or in the context of core public
service provision and public functions such as prisons), and harassment
in an "open" environment where there is an element of
choice as to whether to enter that environment in the first place
(eg a shop, pub, club etc).
Q32. Why should a distinction be made between
"open" and "closed" environments in defining
the scope of the explicit prohibition of harassment?
Exceptions
Annex A lists specific exceptions that the DLR
proposes to retain. We have particular concerns from a human rights
perspective about the exceptions which permit discrimination on
nationality grounds.
Q33. Was consideration given to repealing
the exceptions to immigration functions that permit immigration
authorities to discriminate on the grounds of nationality and
ethnic/national origins? Are these exceptions still justified?
Q34. Was consideration given to limiting the
existing circumstances where Civil Service "nationality rules"
permit discrimination on nationality grounds?
Sex Discrimination Act 1975 (Amendment) Regulations
2007 (Annex B of DLR)
We note that these Regulations are due to be
implemented on 21 December 2007. Draft Regulation 4(b) contains
an exemption to the prohibition on indirect discrimination for
goods, facilities and services provided "at a place (permanently
or for the time being) occupied or used for the purposes of an
organised religion". These terms are not replicated in the
Gender Directive (EU Council Directive 2004/113/EC, 13 December
2004), although the Preamble mentions the importance of respecting
the right to freedom of religion. The Committee is concerned at
the potential for this exception to undermine the human rights
protection that the Directive is intended to give, although it
notes Baroness Andrews' statement that the Directive "will
apply to organisations that provide goods, facilities, services
or premises to the public, including any that may do so in a way
that reflects the tenets of a particular faith or belief, and
to religious organisations, such as churches, where the service
or facility is provided to the public but the nature of the service
is not directly related to religious observance or worship. Generally
it will be unlawful for such organisations to discriminate against
a person of their sex or on grounds of gender reassignment."
(25 June 2007, HL, Col WA87)
Q35. We should be grateful if you would confirm
precisely what this exemption is intended to cover, given that
it is not explicitly contemplated by the Directive.
14 November 2007
256 Letter from Baroness Helena Kennedy QC, Chair of
the HGC, to the Discrimination Law Review, 14 September 2007. Back
257
[2007] NIQB 66 (11 September 2007) Back
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