Letter from Barbara Follett MP, Parliamentary
Under Secretary of state, Government Equalities Office, to the
Chair of the Committee, dated 17 December 2007
DISCRIMINATION LAW REVIEW—A FRAMEWORK
FOR FAIRNESS: PROPOSALS FOR A SINGLE EQUALITY BILL FOR GREAT BRITAIN
Thank you for your letter of 14 November
which raises a number of questions about the Discrimination Law
Review consultation and the proposals for a new Equality Bill.
I am sorry that I was unable to respond earlier.
I am pleased that we received a large number
of responses to the consultation—more than 4,000—from
a wide range of organisations, including the former equality Commissions
and the Equality and Human Rights Commission; representatives
of the age lobby and of gay men, lesbians and transsexual people;
religious bodies and organisations; business representatives and
individual businesses; discrimination law specialists; public
authorities; charities and others. This reinforces the fact that
people take equality seriously.
TIMING
We will be publishing an analysis of the responses
when we publish the Government's proposals in response to the
consultation. I hope that we will be in a position to do so as
soon as possible in the New Year. I have made clear, at business
questions, that a draft Bill will not be possible if there is
a change of policy that needs consideration and discussion. There
simply would not be time to work up substantive new proposals
for a draft Bill in this session. Instead, it is our intention
that we will be able to include the Bill in the proposed legislative
programme for the next session starting November 2008. Our manifesto
commitment was to introduce such a Bill during this Parliament.
This answers your first three questions. Of the remaining questions,
the answer to a large number will need to await our published
response and I have indicated where this is the case. As you will
appreciate, these are complex issues and we need to reflect upon
the responses that we have received.
INTERNATIONAL
On your Q4, the Discrimination Law Review did
not consider the question of whether the UK should allow individual
petition under the International Convention on the Elimination
of All Forms of Racial Discrimination, the International Covenant
on Civil and Political Rights or the Convention of the Rights
of Persons with Disabilities (which the Government has not, of
course, yet ratified). The Government remains to be convinced
in each case of the practical value to the citizen of rights of
individual petition to the United Nations. The UN committees that
consider petitions are not courts, and they cannot award damages,
or produce a legal ruling on the meaning of the law. One of our
reasons for acceding to the Optional Protocol to the Convention
on the Elimination of All Forms of Discrimination against Women
in 2004 was to enable us to consider on a more empirical
basis the merits of the right of individual petition under the
other UN treaties. A separate review of the UK's experience under
that optional protocol is now under way. The Government continues
to have major concerns about the text of Protocol 12 of the
European Convention on Human Rights because it allows an unacceptably
open ended and uncertain range of issues to be brought before
the European Court of Human Rights for a binding decision. Its
text provides that the enjoyment of "any right set forth
by law" shall be secured without discrimination. But it is
not clear whether this includes international as well as national
law. In addition, its text does not state categorically that differential
treatment which has an objective and reasonable justification
(for example, positive action permissible under the Race Relations
Act 1976) is allowed. For these reasons the Government has decided
not to sign the Protocol. However, it has undertaken to keep the
matter under careful consideration and to take account of the
jurisprudence of the European Court of Human Rights with regard
to Protocol 12 as it develops.
EQUALITY RIGHT
On your Q5, the possibility of some form of
statement of compatibility was raised during the consultation
and the Government will address this when it publishes its response.
EXTENDING THE
SCOPE OF
DISCRIMINATION LAW
An explanation of the Government's proposed
approach to the issues raised in your Q6 is provided in paras
1.22 to 1.25 of the consultation document, and chapter
8 (paras 8.13-8.20) deals among other things with a discussion
of the rationale for not proposing to extend discrimination protection
to carers—your Q7. We will address this in our published
response.
On your Q8-Q9, while the consultation document
did not specifically address these issues, it was open to respondents
to suggest extending anti-discrimination law in any particular
way. The Government will address this in its published response.
On Q10, Communities and Local Government
(CLG) conducted a scoping exercise in 2006 to identify
the views of Hindu and Sikh stakeholders. A broad range
of opinion was expressed, but the overwhelming response was that
caste based discrimination has little or no relevance in
today's Britain—and that any cases of caste discrimination
in the area of employment should be resolved through mediation
and consultation rather than legislation. CLG subsequently issued
a questionnaire in August 2007 to various identified
interested parties in order to learn more about the extent to
which they believe caste is a continuing social phenomenon within
British society—and whether they are aware of any existing
evidence that individuals or communities in the UK have been
discriminated against on these grounds. The questionnaire is not
intended to be a formal consultation exercise—the question
of whether (and if so how) Government should seek to engage
interested parties more formally on this issue will be considered
in light of the responses received to this initial request for
views. Hindu community organisations have requested-that
they be given sufficient time (until after the New Year)
to consult the wider Hindu community.
On Q11, as made clear in the consultation document
(paras 8.21, 8.22) we are considering whether there remains a
need for this provision. This is under further consideration in
the light of consultation responses and we will address this in
our published response.
On Q12, we will address the issue of genetic
predisposition in our published response—it is covered in
some detail in the consultation document paras 8.23-8.31.
On your Q13 and Q14, we will address this
issue in our published response. The consultation document itself
sets out our proposal with reasoning (paras 11.7, 11.8 and
11.9). It is already the case, of course, that everyone under
the age of 16 has a legal right to a school place; and schools
have a duty to differentiate what they do to meet different needs,
including those of young mothers, as explained in para 11.9 of
the consultation document.
As you note in your Q15 (relating to para
1.85 of the consultation document), the DLR asked respondents
to the consultation for evidence of any need to retain the existing
exception for differential treatment in the provision of insurance
on grounds of sexual orientation. We are currently considering
the responses to this question and will address this in our published
response.
BALANCING MEASURES/POSITIVE
ACTION
On your Q16, the consultation document in chapter
4 (eg paras 4.44 and 4.47) gives a number of examples
of the type of additional positive action that would be available
to employers or service providers and the consultation asked people
to indicate others. We will address this in our published response.
On your Q17 (see also paras 4.52-4.58 of
the consultation document), we are considering entirely permissive
measures that political parties could adopt, similar to those
introduced through the Sex Discrimination (Election Candidates)
Act 2002. I have commissioned a report from Operation Black Vote
to provide further information on how; for example, a BME-only
shortlist would work in practice. The information from the report
will enable us to address this fully in our published response.
PUBLIC SECTOR
EQUALITY DUTIES
On your Q18, chapter 5 of the consultation
document spelt out very clearly a number of restructuring proposals
concerning the public sector duties. As you indicate, the restructuring
element of our proposals came under strong criticism from some
quarters, though there was a more favourable response to the basic
idea of integrating the three existing duties and a variety of
views on the proposal to extend the duties to cover other equality
strands. We will address all these issues in our published response.
PUBLIC PROCUREMENT,
PRIVATE SECTOR
EQUALITY DUTIES
AND EQUAL
PAY
On your Q19 and Q20, we are considering
the response to our proposals, particularly on equal pay, and
will address in our published response our position on the role
of public sector procurement and equality, as well as whether
there is scope for ensuring greater transparency about equal pay
in the public and private sectors. This includes consideration
of the range of voluntary approaches that have been taken or are
being developed, the need to avoid unnecessary burdens on business,
and the need to focus on outcomes rather than processes.
ACCESS TO
JUSTICE AND
EFFECTIVE DISPUTE
RESOLUTION
On your Q21 and Q22, a number of respondents
raised questions concerning access to justice through the courts
and tribunals which are dealt with in chapter 7 of the consultation
document. Issues of dispute resolution in the tribunals were also
dealt with in a separate consultation by the former DTI. We will
set out our position on enforcement and compliance issues, in
our published response.
MULTIPLE DISCRIMINATION
On your 023 and 024, a number of respondents
addressed the issue of multiple discrimination though little further
evidence was provided some people said it was not possible to
provide evidence of a negative ie of possible claims where no
such grounds existed. We are considering whether there is a case
for enabling people to bring claims on more than one ground and
whether this is a feasible proposition and will set out our position
in our published response.
EXTENDING PROTECTION
AGAINST AGE
DISCRIMINATION
On your Q25 and Q26, the consultation document
indicates a number of areas where there would need to be exceptions
if the Government legislated to prohibit discrimination on grounds
of age outside the workplace, see for example para 9.9 and
9.31 to 9~33. Paras 9.26 and 9.27 set out why the
Government did not propose to include children under 18 from
the scope of any intended legislation. We will of course indicate
our proposed way forward in our published response.
GENDER REASSIGNMENT
On Q27 and Q28, where protection is being
provided against discrimination on the grounds of gender reassignment,
it is necessary to carry out a balancing exercise between the
rights of transsexual people and the freedom of people to hold
and manifest religious views. In the context of our proposal to
extend such protection to the exercise of public functions, this
would inevitably lead to a review of existing exceptions and consideration
of the need for new ones.
On Q29, the consultation document sets out in
para 10.12 why the Government considers that the prohibition
against discrimination on grounds of gender reassignment does
not need to be extended to schools.
On Q30, para 10.15 of the consultation
document set out why we proposed using the existing definition
of gender reassignment in the Equality Bill and sought views.
A number of respondents to the consultation suggested alternative
definitions of gender reassignment. We are considering these responses
and will set out our position in our published response.
HARASSMENT
On harassment and your Q31 and Q32, the
Government has noted the judgment of Weatherup J in re the
Christian Institute and others. We also recognise—as
indicated in the consultation document—that there are difficult
issues in extending protection on grounds of religion or belief,
as became apparent during the debates on Part 2 of the Equality
Bill in the House of Lords. Para 14.29 of the consultation
document set out the arguments for a distinction between "open"
and "closed" environments in defining the scope of the
explicit prohibition of harassment and asked for views. We will
set out our position in our published response.
EXCEPTIONS
On your Q33 and Q34, the consultation was
open to considering suggestions as to which exceptions should
be retained or repealed and we will make our position clear on
this in our published response.
SEX DISCRIMINATION
ACT 1975 (AMENDMENT)
REGULATIONS 2007 (ANNEX
B OF DLR)
You ask in Q35 what precisely the 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" in draft regulation 4(b) is intended to cover.
However, regulation 4(b) of the draft Regulations upon which we
consulted relates to insurance, and there is no regulation 4(b)
in the draft Regulations laid before the House on 28 November.
It would seem that your query is in relation to draft regulation
12 of the version laid before the House (http://www.opsLgov.uk/si/si2007/draftlukdsi9780110801285 en
1), but we would be grateful for confirmation that this
is the case, before we can fully respond to your query.
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