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A quarter of a century ago, I was special adviser to the then Home Secretary, my noble friend Lord Jenkins of Hillhead, and helped to develop government policy on legislation to tackle sex and race discrimination. We introduced radical and controversial measures. The government had both the political will and the skill needed to design and to enact what became the Sex Discrimination Act 1975 and the Race Relations Act 1976, together with a half-measure, known as the Fair Employment (Northern Ireland) Act, which combated discrimination based on religious belief and political opinion.
I take pride in what we achieved. However, with the benefit of 25 years of practical experience, I share the belief of the equality agencies, of senior judges, of independent experts and of employers and trade unions that the time is over-ripe for the comprehensive, rather than the merely superficial, reform of that body of legislation. The approach of successive governments to the increasingly complex, opaque and anomalous state of British anti-discrimination law has been piecemeal and minimalist. It has involved the addition of new layers of legislation in bits and pieces, be they to implement European Community law, to introduce half measures on disability discrimination or to strengthen law enforcement only in Northern Ireland, not in Great Britain.
The complexity of the existing legislation makes it unnecessarily difficult for employers--in particular, for small businesses--to comply with their legal obligations. That complexity hinders victims in their access to justice. Compliance is too dependent on the willingness of individuals to take a case to a court or tribunal. Entrenched patterns of systemic discrimination remain and, except with regard to racial discrimination, British law does not yet require public authorities to perform positive duties to promote equality of opportunity or to eliminate unfair discrimination. The present defective state of the law helps no one.
The defects in the legal regime and the options for reform are lucidly analysed in the independent review by Professor Bob Hepple QC, Mary Coussey and Tuyfal Choudhury entitled Equality: A New Framework. We need a coherent, user-friendly joined-up framework that covers all the main grounds of unfair discrimination throughout the United Kingdom. The concepts need to be rationally and consistently applied. Indirect discrimination against the disabled needs to be forbidden, as do all of the examples of unfair discrimination contained in the EU employment equality directive, including religious discrimination, age discrimination and sexual orientation discrimination. Moreover, there needs to
The right to equal treatment is a fundamental human right. It should be recognised as part of our constitutional birthright everywhere in this country. It is unacceptable that religious discrimination is forbidden in Northern Ireland but not in Great Britain. There needs to be equal protection of the right to equality and equal access to speedy and inexpensive remedies everywhere. A major step towards the recognition of the importance of that right to equality would be for the Government to ratify Protocol 12 to the European Convention on Human Rights, which places that right on a par with other basic human rights that are listed in the convention. I am very disappointed that so far the Government have not even been prepared to sign, still less to ratify, Protocol 12.
The legislation needs to implement European law properly. The present hotch-potch of piecemeal statutes does not achieve reasonable legal certainty by informing the citizen of the true state of the law. It needs to set out the principles on which the legislation is based, while avoiding undue specificity and technicality. It needs to provide only for necessary exceptions to the principle of non-discrimination in accordance with EC law. It needs to encourage a non-adversarial approach, which avoids unnecessary bureaucratic requirements but secures the effective enforcement of the law.
The Financial Services and Markets Act 2000 has created a powerful authority with strong regulatory powers in place of a weak and divided regulatory scheme. The reformers had the huge advantage that their reforms were driven by the most powerful government department, the Treasury. The same political will and intellectual energy should be devoted to re-making the system for regulating and enforcing the equality legislation, which would overcome the difficulty that its subject matter is the responsibility of a balkanised bureaucracy that is spread across five different government departments.
It makes no sense to continue to create more equality agencies to tackle the different types of discrimination that are made unlawful by successive parliaments. The Northern Ireland Act 1998 replaced the equality commissions, working side by side with a human rights commission. The reforms are working well in practice and do not appear in Northern Ireland to be resulting in a hierarchy of rights, by which some would be given a higher priority than others. The Equality Commission for Northern Ireland works well.
Those innovations in Northern Ireland should be implemented in Great Britain. An equality commission is required that has as much professional expertise in monitoring and law enforcement as has the Financial Services Authority. It should be committed to strategic law enforcement and to promoting voluntary compliance and respect for the law.
Such an equality commission will combine the expertise of specialist skill in tackling each form of unlawful discrimination and avoid wasteful duplication of resources. At present, the CRE and the EOC face difficulties in co-ordinating their work in cases of multiple discrimination on several grounds. A single commission would not face those problems and would be well placed to deal with discrimination on related grounds, such as gender and race, or race and religion. Eventually, it could take over the work of the new-born Disability Rights Commission as well.
The reforms should apply to public authorities a positive duty to promote equal opportunities and to eliminate unlawful discrimination. Such a duty has been imposed in respect of race by the Race Relations (Amendment) Act, and should now be extended to gender and other grounds of discrimination. Such a public sector duty will serve to encourage the spread of good practice and oblige policymakers to assess the impact of their policies and decisions on equal opportunities.
Legislation must be enacted by December 2003 to implement the EC race directive and the framework equality directive. Those require measures to be enacted prohibiting discrimination not only on grounds of sex or race but also on grounds of sexual orientation, age and religion or belief, in employment and training. By December 2006 at the latest, there will have to be legislation to combat age and disability discrimination.
There is concern that the Government will take a narrowly restrictive approach both to the implementation of those directives and of the proposals made by the equality commissions. There is a serious risk that the Government may seek to tackle the new grounds of unlawful discrimination only in the employment field, excluding discrimination in access to goods and services, including education and transport services, and even denying the victims of employment discrimination based on age, sexuality and religion the protection and support of an equality commission.
Such a minimalist approach would be in breach of the United Kingdom's international obligations. It would make the existing patchwork of legislation even more incoherent, inconsistent and unworkable. I hope that the Minister will be able to reassure the House that those fears are unfounded; that the Government's measures will clarify and simplify the law, introducing greater coherence, and ensuring the equal protection and enjoyment of the fundamental right to equality. I hope she will be able to tell the House that the Government intend to impose positive duties on public authorities generally to promote equal opportunities. And I hope she will be able to say that the scattered pieces of legislation will be combined, as we on these Benches believe it should be, in a single, comprehensive equality Act, with an equality commission to tackle the new grounds of unlawful discrimination as well as the existing grounds.
Baroness Howells of St Davids: My Lords, I begin by thanking the noble Lord, Lord Lester, for bringing this debate to the attention of the House. His tenacity is to be admired. He has consistently been at the forefront, over many years, in fighting discrimination. I listened attentively to his presentation and was almost persuaded by his well-founded arguments. However, I believe that Her Majesty's Government must give much thought to this issue and that is why I welcome the debate and look forward to the contributions by all noble Lords this evening.
I believe that there is an argument to be made for harmonising what the noble Lord, Lord Lester, referred to as the complexities and inconsistencies of existing anti-discrimination laws which hinder complainants and public authorities and make legislation cumbersome. That harmonisation would indeed augur well for employment issues. I can agree with the noble Lord, Lord Lester, that employers, advocates and trade unions need a clear framework--one which is easy to operate and to apply.
However, we need to be aware of the different kinds of oppression which different groups experience. My days of doing case work give me the experience to assure the House that institutional racism demonstrates itself differently for different groups. There is no empirical data that women or disabled persons have been stopped and searched because of their gender or disability. But we all know that the statistics as regards black young people stopped for that reason are quite amazing.
The changes in the Race Relations (Amendment) Act 2000 were critical to black people. They were the ones most vulnerable to discrimination and disadvantage by the arms of the state--those who were specially empowered to intervene in citizens' lives. Different kinds of discrimination impact on women, gays, lesbians and people with disabilities and I should not want to minimise those in any way. But I believe that we need to learn from the way in which the amended Act 2000 impacts: the way that it is changing the thinking and practices across the public sector, and to evaluate whether even stronger measures are not needed before we embark on the type of harmonising legislation suggested by the noble Lord, Lord Lester.
It needs to be the right legislation. It needs to be able to assist those whose responsibility it is to enact changes; but more importantly to assist those for whom the legislation is needed to protect from discrimination.
I can understand that, in relation to the European directive, there is an urgency for harmonisation. But the greater need is to be sure that the legislation serves the most vulnerable in the different ways needed to tackle discrimination.
Lord Dholakia: My Lords, it is now over 35 years since the introduction of the first race relations statute in this country. Much has changed in those years both in the character of race relations and the general understanding of the issues and problems involved. The working of the legislation has been evaluated time and time again and found to be wanting. It is for that reason that we have had the 1965, the 1968, the 1976 Race Relations Acts and now the Race Relations (Amendment) Act 2000. No one in their wildest imagination in 1964 could have imagined that this country would put on statute four separate Acts to deal with racial discrimination and promotion of equality of opportunity and good relations. But that is the reality today.
Equally to the envy of the western world, it has been a positive framework for a successful multi-cultural Britain. Much of the credit for that goes to my noble friend Lord Lester of Herne Hill. In his capacity as special adviser to the then Home Secretary Roy Jenkins, he was instrumental in shaping our race relations legislation.
We now have the Human Rights Act, which has significant implications for women, disabled people and ethnic minorities. We still need to address matters of age, religion, sexual orientation and discrimination or other improper grounds. The Human Rights Act has opened up a debate as to how equality and discrimination issues should be tackled. It has made existing agencies broaden their focus to consider the way in which differing equality and human rights legislation could address the complexity and inconsistencies of existing legislation inherent in agencies and ably identified in the contribution of my noble friend Lord Lester.
There is no dispute that the essential educational, promotional and law enforcement work requires an independent body--a human rights commission. Also, complexity and inconsistencies in present law would best be eradicated by an equality commission, which will bring the EOC, CRE and DRC together. We need to demonstrate, as we have done in Northern Ireland
We welcome the setting up of the Joint Select Committee on Human Rights. It would be wrong to confuse that with a human rights commission. The Government have already stated that they retain an open mind on whether a commission is needed. I come back to the arrangements ably identified in Northern Ireland. The Good Friday agreement of April 1988 brought into being a Human Rights Commission and a separate Equality Commission. The Equality Commission will take over the existing roles of the Northern Ireland Fair Employment Commission which covers religious and political discrimination, the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission.
The Equality Commission will have the additional role of supervising the duties to promote equality on grounds of race, religion, political opinion, age, sexual orientation, disability and marital status. The HRC has a wider mandate on human rights issues. The model is just one example of new thinking on discrimination legislation. I believe that after 35 years changes are appropriate. Comprehensive reform of anti-discrimination legislation is long overdue and I support the case made out by my noble friend Lord Lester. It is better to prepare for a change now than to be forced into introducing changes by circumstances outside our control.
Baroness Gibson of Market Rasen: My Lords, I begin by thanking the noble Lord, Lord Lester of Herne Hill, for instigating this important and timely debate. I cannot support his proposal for one equality commission, although I believe in the harmonisation of legislation. There have been important changes of attitudes to equality rights since 1997 and they are reflected in government policies. However, we all recognise that there is still a long way to go.
While recognising the importance of anti-discrimination legislation across the board, I want to concentrate on two aspects relating to anti-discrimination in relation to women and to sex legislation: a public sector duty to promote sex equality and consistency--on which the noble Lord and I may agree--and enforcement of legislation. Here I declare an interest as a former equal opportunities commissioner serving on that body from 1991 to 1998. I was originally appointed by the then Home Secretary, now the noble Lord, Lord Baker of Dorking. Therefore, I have worked on changing equality legislation through that body.
In many important respects the sex equality legislation did not bring about, as many of us hoped, equality in working practices and service provision. That is why discrimination laws need to be reformed and made more consistent.
The Sex Discrimination Act is based on the principle of the right of the individual, not to be discriminated against and it has introduced penalties on those who breach those rights. However, the law does not require organisations to put in place systems to address the underlying causes of sex discrimination. I believe that the time has come for organisations to be closely scrutinised and in particular for their promotion, recruitment and evaluation of performance practices to be examined in detail to eliminate discriminatory practices between men and women.
During the debates on the Race Relations (Amendment) Act last year, Ministers acknowledged that institutional practices may lead to racial discrimination, rather than simply the acts of a series of individuals. That analysis is fine, but just as it applies to race discrimination I believe that it should also apply to sex discrimination.
Now may not be the time for organisations in the private sector to be subjected to a statutory duty to promote sex equality, but as a first step a duty should be placed on public services to promote equal opportunities between men and women. A public sector duty has been introduced into race discrimination and the time is right for such a duty to be applied to sex discrimination also. Over the years, across government departments, consideration of gender equality in the planning and delivery of services has been sporadic. Now is the time for action to ensure consistency.
The passing of the European directive on discrimination in employment is a welcome step in providing legal rights for groups who have previously had no legal protection against discrimination under British law. As has been explained, that has, unfortunately, further contributed to the legal inconsistencies in discrimination law. It brings in a new test for indirect discrimination on the grounds of everything except gender. Having two indirect discrimination tests, as the noble Lord said, will be extremely confusing, especially for employers.
The Better Regulation Task Force review of anti-discrimination laws has called for greater consistency throughout legislation. Therefore, a golden opportunity is before Government to change the discrimination laws to bring them into line with each other and to produce a consistent legal framework. A vital element to that approach must be that any new rights are properly enforceable.
The Government rightly emphasised the need to provide disabled people with enforceable rights under the DDA. A recent survey has shown that 86 per cent of firms have developed or revised their employment policies as a direct result of that Act. The EOC, the CRE and the Disability Rights Commission are statutory bodies that have strategic law enforcement
Therefore, I urge the Government to devise a planned programme of change to ensure that all anti-discrimination legislation is both consistent and enforceable and to consider seriously the introduction of a public sector duty to promote sex equality.
The Lord Bishop of Bath and Wells: My Lords, I am grateful for this brief chance to speak to the noble Lord, Lord Lester, not only as a bishop, but also as a co-founder of the Interfaith Network UK. That organisation engages in the essential task of developing relationships and understanding between different faith communities. It has had encouraging dialogue with the Government to help it on its way. We hope that such positive consultations will continue after the election. As the Cabinet Office Minister said in February,
On the other hand, as we have heard from the previous speaker, it is clear to me that legislation could strengthen this purpose enormously. At the same time--this is the difficulty that I want to highlight--there must be protection for the identity of faith communities and their distinctive organisations. It is quite difficult to see how all those matters can be fitted together. Muslims will want to appoint their imams and I guess that Christians will want to appoint Christian bishops.
As chairman of the Children's Society, I believe that we have a distinctive contribution to make to social justice. That distinctiveness is sustained by having a Christian Society management team. There are also schools and colleges that give tremendous service to our society. Some see the pluralist society as demanding that all children should be educated together, and I can see places around the world where that would be true, although some religious schools are divisive. However, almost every day I see how schools can provide a broad sense of belonging and a sense of moral and spiritual values according to the faith of the school that the children attend. For that we need the context of a strong idea of citizenship.
I believe that problems arise when the identity and the distinctiveness of the Christian organisation or the organisations of other faiths are made into divisive creations. However, to encourage the celebration of the variety of communities, to which the Minister referred, within our whole society requires a great deal of skill in terms of legislation.
If we can find a way of strengthening the resistance to discrimination and yet give space for distinctiveness, we will do not only a service to our own nation and society but, as we heard today in an earlier debate and as we know from other experience, to many countries of the world where discrimination amounts to persecution. Perhaps we have a chance now. When I was chairman of the Interfaith Network, I heard a most moving speech by a doctor who said that he thought such an organisation could exist as it does only in the United Kingdom.
Baroness Thomas of Walliswood: My Lords, it is always a pleasure to take part in a debate initiated by my noble friend. His great experience in these matters and his persistence in putting across his point of view, because he knows it to be an important one, are well known in this House.
My comments reflect my increasing interest in the difference between being a subject rather than a citizen, but they also chime with the comments of my noble friend Lord Lester on the ad hoc, piecemeal and inadequate nature of equality legislation in the United Kingdom.
Older people, who all their adult lives have been able to choose with whom they live and whom they invite into their homes, can find themselves confined in a so-called home with people with whom they may have nothing, except their age, in common. What is more, unless the Government comprehensively change the situation, they will be obliged to pay for care which, were it given in hospital, would be free. That is a unique penalty.
At present, political parties may be legally inhibited from positively promoting the candidature of women as MPs so as to address the balance in the House of Commons. There is legislation against religious discrimination in Northern Ireland but not in the rest of the UK. There is, education apart, little or no equality legislation in respect of access to services or to the quality of services provided. Voters are not of equal value in the ballot box. I could go on but time is short.
How has this happened? My feeling is that the fundamental cause is the absence in this country of a generally accepted theory of citizenship. We have had continuous constitutional change from the beginning of history. We even had a revolution, but one could argue that we had it too early, before the Age of
Speaking very broadly, from the early Middle Ages up to the time of the Glorious Revolution, constitutional change consisted in essence of the sporadic wrestling of rights and powers from the monarchy in favour of certain, often quite small, groups and of the growing concept and reality of Parliament. That process of the transfer of powers from the Crown to Parliament, interrupted by the Civil War, was acknowledged as irreversible from the draft Declaration of Rights.
In the 19th and 20th centuries, the right to vote was gradually granted to the masses and to women, the nation's two inferior types of people. But even the process of broadening the franchise left untouched the idea of the sovereignty of Parliament rather than the sovereignty of the people.
It seems to me that it is this uniquely pragmatic and ad hoc attitude to our fundamental constitution which has led to the jungle of legislation in the field of equality. It is as though whenever someone notices something is wrong a law is passed to correct that wrong but nothing is done to deal with wrong as a whole.
The same attitude made the European Convention on Human rights seem so foreign in the eyes of many Members of this House when we discussed its introduction into our law. But is it too late to change? Could we look forward to a reforming government who use our acceptance of the convention into British law as an opportunity for a root and branch reform of our equality legislation? Could we start with an assertion of the equal right of every citizen, regardless of age, sex, ability, sexual orientation, race, colour or creed, to fair treatment at work, equal access to appropriate services and equal life chances--not minimalism but a new version of life, liberty and the pursuit of happiness?
Baroness Wilkins: My Lords, I add my thanks to the noble Lord, Lord Lester of Herne Hill, for introducing the debate, especially for having chosen the first anniversary of the establishment of the Disability Rights Commission, the body which has given teeth to our Disability Discrimination Act and for which the Government can be justly proud.
The issue which I wish to raise may be seen as minimalism according to the noble Baroness, Lady Thomas, but it is one which I believe will become increasingly important in the 21st century. It is the use of genetic technology and whether new legislation is now necessary to outlaw discrimination resulting from genetic screening.
Since Dolly and Polly were launched upon the world--one a cloned sheep and the other a sheep with human genes--the disability community has been raising concerns about the fast pace of developments in genetic science. Disabled people have been in the spotlight of media and public interests as our
Despite the Government's plans for the fast expansion of genetic technology in the NHS, they have shown themselves to be aware of these issues. On 19th April, the Secretary of State for Health announced the Government's intention to legislate to outlaw human reproductive cloning. He also said that, subject to the Human Genetics Advisory Commission's recommendations in mid May, the Government plan to issue a moratorium on insurance companies' use of genetic profiling tests to predict which of their customers were likely to die prematurely or suffer chronic disease.
However, it is in employment where perhaps there has been least discussion of the discrimination threat posed by genetic testing. While there is no evidence that genetic screening is currently practised in the UK, its use in the US is, however, extensive. A 1999 survey by the American Management Association found that 30 per cent of medium and large-scale companies sought some form of genetic information from employees.
There is also significant evidence of genetic information being used to discriminate. A survey by Dorothy Wertz of 1,500 genetic counsellors and physicians found that 785 patients had reported having lost jobs or been denied insurance because of their genes.
Employment practices in the United States are frequently adopted here, the most recent example being drugs testing. This becomes more likely as genetic testing for employment purposes becomes cheaper and more readily available. Multinational companies with UK premises are likely to introduce such screening and strict controls should be put in place before this happens rather than afterwards.
The current legal position in Britain is that an employer may require an applicant for employment to take a genetic test and the employer may discriminate on the basis of such a test--that is, unless the test relates to an existing disability covered by the DDA. The Disability Rights Commission agrees with the Human Genetics Advisory Commission's recommendation that employees should not be obliged to take a genetic test for employment purposes. However, it disagrees that an employer should be able to ask for access to existing genetic information if the test relates to a condition that will directly affect the individual's ability to do the job in question or his susceptibility to a particular workplace health risk. The DRC's view is that excluding or removing people from the workplace just because they might develop a genetic condition is unacceptable.
This is an issue which affects us all. The discrimination currently faced by people with impairments might soon be faced by those with no symptom of disease and no apparent difference from the idealised average. In a 1999 survey on genetics and disability, RADAR found that 85 per cent of those surveyed believed that legislation to outlaw unfair discrimination based on genetic status was now necessary. In responding to this debate, will my noble friend the Minister give an indication whether the Government have any plans to include discrimination on the basis of such genetic screening within any possible reform of anti-discrimination legislation in the UK?
Lord Addington: My Lords, I initially added my name to this debate for the simple reason that the assumption of my noble friend Lord Lester that all forms of discrimination should be treated equally is one that I find almost impossible to resist. The discrimination legislation with which I have been most closely involved has dealt with disability. When my noble friend Lord Dholakia referred to a number of matters in the field of racial discrimination, I started to think of the number of Bills on which I had spoken specifically in relation to disability legislation, or discrimination, equality and inclusion in the field of education. I gave up because such Bills are virtually without number.
We try to bring about full inclusion and rights for groups and bodies but we always run back to stick in bits of legislation; we think that it should be there and we should deal with problems, but we have absolutely no standard. We are always plugging holes and making the same points. All of the bodies in the world of disability will always claim that their case requires special attention. That is the way that the disability field works. But those bodies are most effective when they join together. Generally speaking, they join together when they have to and they believe that something may be done. I say that in the full knowledge that earlier today the noble Baroness heard me talking about one particular disability. I would have liked it if the noble Baroness's answer had been, "Yes, according to one overarching guideline", or some guidelines that already exist. In that case it was dyslexia. I should have declared an interest at that time, but I rather assumed that in my case that was already on the record. That would then be conformed to as the gold standard, whether it became a universal standard or one particular standard.
There is an absurdity here which cries out to be dealt with. We can jump around as much as we like, but if we believe that people deserve to be treated on equal terms whenever that is possible, we must go some way to bring them on board together; otherwise, there will be the faint suspicion that it is all right to discriminate
Baroness Greengross: My Lords, I too congratulate the noble Lord, Lord Lester, on securing this debate. The fact that so many speakers are listed clearly demonstrates how strongly many noble Lords feel about discrimination. Just over a year ago when I was still director general of Age Concern I gave oral evidence to Sub-Committee F of your Lordships' European Union Committee in its inquiry into the EU's proposals to combat discrimination, including age discrimination. Shortly afterwards, I was privileged to take my place as a Member of this House. I was able to speak in the debate on that committee's report held on 30th June. Rather appropriately, it was the day of my retirement from Age Concern. I am, therefore, living proof that this House does not practise age discrimination. I hope that it continues to behave in that way.
I am now a member of Sub-Committee F whose report on migration and the need for a European policy on it was published today. The report touches on attitudes which unfortunately often result in discrimination against people who seek a better life in this country or escape from persecution. My views on age discrimination are probably known to some Members of your Lordships' House from my time with Age Concern and heading up Eurolink Age, a pan-European NGO. Age discrimination is an unacceptable and very pernicious form of discrimination which is still largely unrecognised. Therefore, I welcome the Government's acknowledgement that it is a real problem and one that must be tackled. However, I am aware that it is difficult to do that through legislation alone.
The competence of a person should, however, be the criterion on which that person is judged as capable of doing any job. Chronological age is not a reliable marker of anything; it is totally arbitrary. We all differ, whether we are five year-olds, 25 year-olds or 65 year-olds. We differ from each other even if we share the same date of birth.
The EU framework directive on discrimination, despite problems with its text and the ability of this House properly to scrutinise it, is a defining moment for those who campaign against any form of discrimination and want it to end. But for those who campaign against age discrimination this is the first fruit of the Treaty of Amsterdam which states that the EU,
However, I am very much committed to the idea of an equality commission which would eventually cover all areas of discrimination, including race, nationality and gender. I was interested to read the excellent independent report produced by the Judge Institute. It argued persuasively for the matter to be considered, not just on grounds of administrative convenience or to save a little money on bureaucracy, but because there are sound policy arguments for giving it serious consideration in the near future. It is not only our economy but our society, in its broadest sense, that needs this to happen.
I therefore hope that the Minister can reassure the House that the Government are considering a comprehensive reform of anti-discrimination legislation rather than just piecemeal action, department by department or issue by issue. Discrimination is a cross-departmental issue. It should be at the heart of government thinking, policy and action.
Lord Avebury: My Lords, as my noble friend pointed out, in Northern Ireland we already have the mechanisms for considering discrimination across the board. The public authorities are required to promote equality of opportunity between persons of different religion, race, age, gender, political opinion, sexual orientation, physical and mental ability and family size. Every authority has to produce an equality scheme stating how it proposes to fulfil those duties. The scheme then has to be submitted to the Equality Commission for approval. The commission has the power to issue guidelines as to the form and content of the schemes. I suggest that the Northern Ireland model is one that we should consider very seriously in framing our own legislation in Great Britain.
As my noble friend has pointed out, in Britain the positive obligation on public authorities applies only to race under the Race Relations (Amendment) Act. That extends to the removal of any indirect discrimination which may be found to exist. However, in Britain the public authorities are not required to produce equality schemes, although it would be possible for the Secretary of State to make an order requiring them to do so under new Section 71(2) of the
Northern Ireland is also ahead of the rest of the UK in that promoting social inclusion runs as a theme through the policy of all departments instead of being segregated into an under-funded office directed by the Prime Minister, as the Social Exclusion Unit is here. Psychologically, there is something to be said for the positive idea of promoting social inclusion as opposed to the negative concept of preventing social exclusion. I ask the Minister whether that might be taken into consideration in the framing of any legislation, because the Social Exclusion Unit would obviously need to be merged within the new commission which would be created by any legislation.
I want to give an example of how this policy works in Northern Ireland. Travellers benefited from a new policy on accommodation launched in August 1999 by the noble Lord, Lord Dubs, and a report by the PSI Working Group on Travellers in June 2000. In Britain, by contrast, since the Government came to office they have taken no policy initiative to promote the social inclusion of Gypsies. Their needs have been ignored by the Social Exclusion Unit, although everyone acknowledges them to be the most disadvantaged of all minorities in terms of access to education, healthcare, social services and accommodation.
I draw the Minister's attention to the case of Chapman v. UK in the European Court of Human Rights. That court said that special consideration should be given to the needs of gypsies, both in the regulatory planning framework and in arriving at decisions in particular cases. There was a positive obligation imposed on contracting states by virtue of Article 8 of the Convention, which deals with respect for family life and facilitating the gypsy way of life. That extends beyond the immediate issue of planning.
The comprehensive legislation to promote equality which we hope to see must include a unified equality commission with powers to consider representations from and on behalf of disadvantaged minorities, and to highlight failures of policies such as these, which are still failing to deliver the Government's promises on equality.
Baroness Prashar: My Lords, I am grateful to the noble Lord, Lord Lester, for initiating this debate and for drawing attention to the report Equality: A New Framework. It is a mark of his commitment to equality and his pioneering role in the development of anti-discrimination legislation. This is a significant review for it paves the way for a co-ordinated reorganisation of a highly disjointed and fragmented area of law.
In his opening remarks, the noble Lord, Lord Lester, concentrated on the legislative framework. I want to say a few words about the parts of the report that deal with the promotion of equality of opportunity within institutions. As someone who for the past 25 years has spent a great deal of time, in one capacity or another, trying to persuade and cajole
As we know, discrimination and exclusion are now more complex and covert than they were three decades ago. Eliminating institutional barriers now requires greater emphasis on changing organisational culture and must be internally driven. The present framework places too much emphasis on state regulation and too little responsibility on organisations and individuals. It adopts an incoherent approach to different manifestations of inequality. Consequently, the initiatives which have been adopted are reactive and separate from each other. I can say that because some years ago I chaired a panel that was designed to increase the representation of minorities and people with disabilities in the senior Civil Service. My assessment was that the main barrier was the externally driven initiatives and the disjointed and competing factors among different groups.
The present framework was derived largely to deal with hierarchical, vertically integrated and centralised organisations. That is no longer appropriate for modern, flatter organisational structures in which equality depends not simply on avoiding negative discrimination but on the active participation of all concerned--I refer in particular to middle managers--in terms of training and improving skills, learning, developing wider social networks and encouraging adaptability.
If we want a step change in promoting equality of opportunity, we must break away from the mind-set which relies on externally imposed detailed regulations. We must move our focus to shifting responsibility for change on organisations and individuals themselves if we want what I call sustainable cultural change in institutions and not merely cosmetic tinkering, which is based on externally imposed targets.
The report's recommendations are as compelling as its rationale and they resonate with my practical experience. They offer a model which starts from a base of persuasion, information and voluntary action plans. If those fail, only then does one move to investigation, compliance notice and judicial enforcement. That will encourage a proactive, non-adversarial approach. Voluntary, internally-driven initiatives are far more effective than externally enforced regulations.
The progress in institutions has been frustratingly slow because initiatives have been marginal. I was delighted when the positive duty to promote equality was enshrined in our race relations legislation. But we need to go further by creating a comprehensive framework for all types of inequalities. It is necessary
Baroness Walmsley: My Lords, I, too, should like to thank my noble friend for introducing this debate. Like him, I abhor discrimination of every kind, but as the President of Women Liberal Democrats, I think it appropriate that I confine my remarks to discrimination against women.
It is many years since the Treaty of Rome established the principle that men and women should have equal pay for equal work. However, equal pay is still not a reality in Britain today. Women who work full-time earn only 80 per cent of the average hourly pay of full-time men. Women who work part-time earn only 60 per cent of the hourly pay of full-time men. The mid-skilled childless woman earns £241,000 less over her lifetime than her male equivalent and, if she has two children, she will lose another £140,000. Retired men receive an average income of £174 per week while women receive only £94. The pay gap is caused by a complex combination of factors, including women's over-representation in poorer paid jobs, the undervaluing of jobs traditionally done by women and the high percentage of women in part-time employment.
The new regulations on equality in part-time pay will certainly help, but that is not enough. The Castle awards and the "fair pay champion" idea unveiled recently by the employment Minister are all very well, but the companies which are doing the least are the ones that should be forced to act, not the ones which are doing well enough to be nominated for an award. I ask the Minister what else the Government plan to do to ensure that women are treated equally in the workplace.
The Liberal Democrat proposal for an equality Act would do much to address the problem of unequal pay. The historical underpayment of women has resulted in millions of female pensioners living in poverty. Many married women paid the reduced national insurance stamp and the consequence is a tiny pension. While I am on the subject, can the Minister tell me exactly what women who choose to pay the reduced stamp get for their money? The Liberal Democrats want to make pensions fairer to women by abolishing the contributory principle and having pension rights based on citizenship and UK residence. This would help women with incomplete contribution records as a result of their caring responsibilities.
The problem with the current law is that the onus is on individual workers to prove discrimination rather than on employers to demonstrate equal treatment. What is needed is a change to allow group or class
I turn now to the benefits system and I should like to highlight one particular discrimination against single working mothers. If they are receiving working families' tax credit, they have to receive it in their pay packet. Couples receiving the same benefit can collect it at the Post Office, but single mothers cannot do so. When my colleagues in another place tried to amend the Act to remove this anomaly, the Government refused, saying that single mothers should be taught the value of work. If those women are managing a family single-handed and still holding down a job, they need no sermons from this Government about the value of work.
The effect of this anomaly was demonstrated recently by three single mothers in Stoke-on-Trent. Their employer changed from paying in advance to paying a week in hand and the women lost a week's worth of WFTC. In the same situation, a couple would have been able to collect their benefit each week from the Post Office. If that is not discrimination against single mothers, I do not know what is.
Finally, I urge the Government to get on with the promised study into the recommendations of the Constitution Unit on changing the law to allow special measures by political parties to improve representation by women and ethnic minorities. From these Benches, we have assured the Government of our support for such a study. European law is clear. Commissioner Flynn has emphasised that Community legislation is no impediment to national measures to improve the representation of women on elected bodies. It is therefore time that the UK Government caught up with those of our European partners who have shown us the way on this very important matter.
Lord Faulkner of Worcester: My Lords, I, too, thank the noble Lord, Lord Lester of Herne Hill, for introducing this debate, which has attracted an extraordinary degree of interest and knowledge from Members of your Lordships' House. In the same way as the noble Baroness, Lady Walmsley, I intend to deal with the issue of sex discrimination and to express my support for the Private Member's Bill introduced in another place during the last Session of Parliament by Robert Walter MP which was designed to prevent private clubs from admitting women on different terms from men.
Three kinds of club would have been covered. The first group is sports clubs, in particular golf clubs, which allow women restricted membership or allow them to play only at particular times. Many allow women only associate membership and deny them full voting rights and the use of the club rooms at evenings
Included in a catalogue of discriminatory practices, all of them perfectly legal, were the rules which applied to the so-called "public room"--the one to which women were admitted. While that was being refurbished, a white line was painted on to the floor to stop women from going more than half-way into the bar.
The second kind of club where change is needed is working men's clubs which allow women to use some facilities but not others. Take the Sunnybank Social Club in Silsden, near Skipton. According to the Independent on Sunday:
The third group is the so-called gentlemen's clubs which allow women only restricted membership or keep them out of certain bars or dining rooms. Here I should declare an interest as a member of the Reform Club, which changed its rules to admit women on equal terms with men 20 years ago in 1981. Not so, however, the Carlton Club, where there have been three attempts in the past two years to change the rules to allow women to be full members. Before the last vote in November, Mr William Hague said that he would resign if the change were not made. It was not--and he has not.
There is some evidence that golf clubs in particular are prepared to forgo lottery grants--which are offered on condition that there is no sex discrimination--rather than change their ways. So surely we need a new sex equality Act to update the Sex Discrimination and the Equal Pay Acts and to change the law so that if a club chooses to admit women, it must admit them as equal members.
This issue has nothing to do with political correctness; it is about civilised behaviour. Private clubs are prevented by law from discriminating against people on grounds of race, creed or colour. Any decent person would be affronted if they tried to exclude people because they were Jewish or black or Asian or Welsh. Discrimination on grounds of gender is equally offensive and must come to an end.
Baroness Williams of Crosby: My Lords, I am grateful to the noble Lord, Lord Faulkner. He may have explained to us why, regrettably, there is only one member of the Conservative Party on the Benches in the Chamber. That may be because of the discriminatory practices of the Carlton Club.
I have to admit that I remember still, as a junior Minister, having to walk through the central heating system of the Reform Club, owing to the thought that, as a female, I would have in some way polluted the halls of the Reform Club by passing across them in order to chair a study group on early forms of genetic manipulation. It just goes to show that we have moved on a little.
I, too, should like to add to the many tributes paid to my noble friend Lord Lester and, for reasons of time, simply say that at some time in the future, when history is written, it will be recognised that the introduction of a culture of human rights owes probably more to him than to any other single person, not only in this country but throughout the whole of Europe. That is something that most of us would very much wish to be written as a tribute about ourselves at the end of our careers.
As to the common equality commission, the noble Baronesses, Lady Greengross and Lady Gibson of Market Rasen--a relatively new Member of our House--have drawn attention to the anomalies, as has my noble friend Lord Addington, which arise as a result of having a large number of split commissions and split bodies; there are some four commissions at the present time. It does not make for effective action in cases of the less widely recognised forms of discrimination.
The noble Baroness, Lady Greengross, referred to discrimination on grounds of age, and my noble friend Lord Addington referred to discrimination on grounds of disability--neither of which have received the kind of attention that race and gender have received up to now. That should not in any way diminish the importance of non-discrimination on grounds of race and gender, but it shows that we have a further step to make in order to treat our citizens equally.
That brings me to the thoughtful speeches of my noble friend Lady Thomas of Walliswood and the noble Baroness, Lady Prashar. Citizenship should be about the acceptance of the equality and respect that we all owe to one another. It should go beyond simple negative anti-discrimination to a positive statement of what citizenship should mean in a multi-cultural and
I now turn to a recommendation in the Hepple report, based on the findings of a review conducted by the University of Cambridge Centre for Public Law. Perhaps I may quote one sentence from the report:
We are looking at a situation where, even now, after 30 years of anti-discrimination legislation in respect of both race and gender, there are still huge inequalities. Some of them were mentioned by my noble friend Lady Walmsley in the case of gender. One might add to that the absence of members of ethnic minorities from the highest positions in the land, including in the Civil Service. Perhaps I may congratulate the noble Baroness, Lady Prashar, on becoming the first Civil Service commissioner. I hope that she will introduce positive action to produce in the Civil Service a more anti-discriminatory view of its duties.
An interesting point was raised about citizenship and the possibility of scientific change. Perhaps I may conclude by saying something about each. In regard to citizenship, it is appropriate that the Minister of State for Education, the noble Baroness, Lady Blackstone, is to reply to the debate. One area where a much more positive position should be taken in regard to human rights and the recognition of the equality of all citizens is the national curriculum. In this country we have been neglectful, frankly--across all parties and over a long period of time--of the training of our young people in the whole field of the recognition of equal rights and respect for all citizens.
The noble Baroness, Lady Wilkins, raised a fascinating point. She spoke eloquently about the dangers of genetic testing establishing differences between people which might affect, for example, their insurance liabilities. I should merely like to add one thought about the future. If we get into a situation where it becomes possible--and that may be very close now--for people to select the genetic traits of their children, including such traits as the colour of their eyes or even the quality of their IQ, it will be essential to have a single body, an equality commission, that can legislate in a field that could present us with huge problems the like of which we have only just begun to envisage. I suggest that one of the areas that an equality commission could examine closely is that of the effects of scientific advance in terms of being able to reinvent inequalities which, after so long, we have tried to legislate against.
My party's policy is that we support any sensible action to enhance anti-discriminatory legislation but without overburdening public services or business with excessive regulation. I fear that the admittedly persuasive suggestion by the noble Lord, Lord Lester, of an equality commission may suffer from that drawback.
On the whole, we would be against a general reform of the anti-discrimination laws, as we believe that the current framework, particularly after the passing of the Race Relations (Amendment) Act, which we supported, offers significant protections. We should certainly not oppose sensible reforms where these are believed to be necessary. There is one area within which there is possibly room for further legislation; namely, on the grounds of religious discrimination.
Therefore, in the short time available I want to concentrate on religious discrimination. As several noble Lords have pointed out, it is a particularly complex subject on which to attempt to draw a line in the sand. What is a religion, what is a faith? Current race relations legislation covers religious groups, but only where these can be classified as religious groups; for example, Jews and Sikhs. But what of the many Muslim adherents, which comprise many different ethnic groups? The report from the University of Derby concludes that religious discrimination is a significant problem, particularly for the Muslim communities. But among Christians, too, there is, sadly, evidence of discrimination against black-community Churches and against non-mainstream Christian bodies such as the Mormons and Jehovah's Witnesses.
There are two further points that I should like to make on the matter of religious discrimination. We have particular concerns that religious groups, and charities associated with them, must have the freedom to engage as employees members of their own persuasion. The right reverend Prelate referred to the need for bishops to be Christians. On a less exalted level, I am not thinking of vergers and sacristans only but also of the ability of faith-related charities to employ people of their own faith or persuasion.
I was interested in the right reverend Prelate's point about the delicate balance between diversity and discrimination. I am reminded especially that we are fortunate in many ways in this country; for example, Muslim girls can wear the veil to school with impunity, whereas they cannot do so in France: they must conform.
A particular concern is the discrimination that many faith-based groups face when applying for grants from the public sector. I shall give your Lordships the specific example of the awarding of broadcasting licences. My party's case was set out unequivocally by
Baroness Blackstone: My Lords, I should like to thank the noble Lord, Lord Lester, for raising these important issues tonight. He has made a major contribution to the development of anti-discrimination legislation in this country, and his views on how further progress might be made to achieve equality of opportunity are both extremely valuable and most interesting.
Given that there have been 16 speakers in this short debate and I have but 12 minutes within which to try to respond, I think it would probably be most sensible for me to write to noble Lords who have asked particular questions. Otherwise, I might spend the entire time trying to respond to different detailed questions which I do not believe would make a lot of sense.
At the beginning of my remarks, I have to say that I have similar memories to those of the noble Baroness, Lady Williams, on private clubs that restricted membership to men. I am happy to say to my noble friend Lord Faulkner that the issue is still under review, and we shall continue to keep it so.
This Government share the firm commitment of the noble Lord, Lord Lester, to equal opportunities and eliminating discrimination. Economic competence and social inclusion are not competing objectives; but they are interlinked ambitions that we should all have. We want to remove the barriers that prevent people from fulfilling their potential and create the conditions whereby every member of British society is treated fairly and is not hampered by stereotypes and false assumptions. We have taken steps, and shall continue to do so, to ensure that an effective legislative framework is in place. Indeed, legislation provides the floor; it is essential. However, it is not enough of itself to achieve the change in attitudes and preconceptions that lead to discrimination.
We have seen radical changes over the past 30 years and the pace of change is likely to continue; indeed, I hope that it will. We must build on the framework already in place and ensure that individuals and organisations are aware of their rights and responsibilities and are able to take on the new responsibilities that befit a just, fair and diverse modern society.
Let us be clear. Discrimination is in no one's interests in the long term. But legislation must be workable. We have no wish to impose unreasonable burdens on business. I agree with the noble Viscount that it makes no sense to do so. However, some of our most innovative companies have already discovered the benefits which inclusive and flexible approaches to the recruitment and management of their staff can bring. On some issues the best way forward will be to build on current best practice, offering informed advice through both central and regional services and preparing down-to-earth practical guidance.
If attitudes are to change, people need to be aware of the issues. Initiatives such as the "See the person" campaign have had a major impact in making some people think twice, or even think for the first time, about assumptions that they have long held but never questioned. Here I agree with the noble Baroness, Lady Williams, about the importance of education and the value of the introduction of citizenship in the national curriculum. We must address these issues with young people and try to shape their attitudes to make them non-discriminatory and tolerant.
There is, of course, a clear need to modernise the framework, for example, to ensure protection in relation to all the grounds of discrimination which society now recognises need tackling. That is why we were pleased to secure agreement on the new EC employment directive, about which I shall say more later. I first touch on what we have done so far.
The Government have been pressing forward on a broad front taking action through legislation and other means to promote a fairer and less discriminatory society. In our 1997 manifesto we made clear that we would support comprehensive civil rights for disabled people. We quickly set up the Disability Rights Task Force. Its first task was to report on the role and functions of a Disability Rights Commission, for which the disability lobby had fought for 18 years to no avail under the previous government. The DRC opened its doors to the public a year ago today. Therefore, we celebrate its first anniversary.
Access to education at all levels is something which many of us take for granted. The exemption of education by the Conservatives from the Disability Discrimination Act was a serious blow for those campaigning for comprehensive civil rights for people with disabilities. The Special Educational Needs and Disability Bill will plug the gap left by the DDA and is a major step forward in increasing opportunities for disabled people to fulfil their potential.
On 5th March we published our response to the DRTF. In it we propose a number of legislative changes to improve disabled people's rights. The total number of jobs brought within the scope of the Act by the changes we propose will be nearly 7 million, including around 600,000 disabled people.
On race, the Race Relations (Amendment) Act 2000 delivers a government commitment to extend the full force of race relations legislation to the police and goes further. The Act also imposes a general duty on listed public bodies to ensure that they carry out their functions with due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.
As the noble Baroness, Lady Walmsley, said, on sex equality one of the key issues is the gap between women and men's average pay. We welcomed the report of the Equal Opportunities Commission's Task Force on Equal Pay as an authoritative contribution to understanding how best to secure further progress. There will be a comprehensive review of women's employment opportunities and pay to be headed by Denise Kingsmill, the Deputy Chair of the Competition Commission who will report back her findings later this year.
On age, we are already tackling age discrimination by vigorously promoting the code of practice on age diversity and the benefits to be realised. Evaluation of the code of practice shows that a third of employers are aware of the code and that since its launch the use of age in recruitment has halved from 27 per cent to 13 per cent. But I agree with the noble Baroness, Lady Greengross, that we have to go much further to ensure that all employers understand the benefits of age diversity.
The noble Lord, Lord Lester, has set out his vision of what the anti-discrimination law should look like. We need to consider seriously the case for a single equality statute and a single equality commission. Calls for a single system have been accompanied in some cases by analyses of how equality legislation has evolved into its current form and its strength and weaknesses. Such analyses have added great value to the general debate. Among the best and most comprehensive is the report of Professor Hepple on Equality: A New Framework to which the noble Lord, Lord Lester, referred. The Government recognise the validity of many of the arguments for comprehensive reform. We shall consider them seriously. For example, it has the potential to bring benefits for business, offering greater consistency of approach and improved coherence of advice and guidance. It might indeed embrace a more proactive approach to promoting equality in both the public and private sectors, bringing a shift from reliance on individual cases, with enforcement very much as a last resort. There would be benefits, too, for individuals--a single avenue for advice on rights and, if need be, redress.
Of course, there are counterbalancing arguments too. I was interested in what my noble friend Lady Gibson said about a single commission. Some would argue that a single commission might weaken the emphasis that needs to be placed on tackling particular types of discrimination. We have to take those views seriously.
On disability, we have had it as our highest priority to ensure sufficient focus on closing the gaps in legislative protection and ensuring businesses meet their obligations under the DDA. As part of this it has been, and remains, essential that we do not undermine the effectiveness of the only recently established DRC.
With regard to age, we are only in the early stages of identifying with interest groups the critical issues that need to be addressed. Matters of religion and sexual orientation also raise very different issues. When one starts to analyse them it becomes clear that "one size does not fit all". So we would need to look carefully at other practical, transitional implications of moving to a single statute. It would take time for case law to develop and provide a clear, common understanding of employer obligations and best practice. We would want to be very clear that the long term benefits outweigh the short-term costs.
That said, we shall watch with great interest the developments in Northern Ireland, mentioned by the noble Lord, Lord Avebury, where there are different equality laws and structures, including a single equality commission. The executive there is committed to taking forward work on a single equality Bill to harmonise existing legislation. We shall see how they incorporate new grounds including age and sexual orientation.
In the interim, we do not need to wait for definitive conclusions on the questions of a single statute or single commission to secure some of the practical benefits. As I have said, we want to harmonise and improve the consistency of legislation when the opportunity arises. We are moving forward already to secure some of the benefits of joint working by the equality commission.
We have encouraged close collaboration by the commissions through co-location (in the case of the EOC and the DRC) and the production of joint publications. The three commissions have been key partners with the DfEE in ensuring the successful development and launch of the Equality Direct service, which offers practical advice on equality to small and medium-sized companies.
Against that background, we are starting to consider the implementation of the Article 13 employment directive. The noble Lord, Lord Lester, has made a powerful case for grasping the opportunity for comprehensive reform. We recognise the arguments for a single equality framework incorporating a single equality commission, but we have to think about how such a framework would be constructed in practice.
I have run out of time and cannot take the issue any further this evening. A variety of views have been expressed during the debate. I shall draw them to the attention of my right honourable and honourable friends.
The key to fair treatment lies in the way in which individuals in society behave towards one another and the attitudes that inform that behaviour. We need to strike a balance between refining the legislation and further reinforcing sensible, practical action within the current framework to assist those who, for far too long, have suffered unnecessary discrimination in this country.
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