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25 Mar 2008 : Column GC65

25 Mar 2008 : Column GC65

Grand Committee

Tuesday, 25 March 2008.

The Committee met at half-past three.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) in the Chair.]

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): Before the Minister moves that the first statutory instrument be considered, I remind the Committee that in the case of each statutory instrument the Motion before the Committee will be that the Committee do consider the statutory instrument in question. I should perhaps make it clear that the Motion to approve the statutory instrument will be moved in the Chamber in the usual way.

Sex Discrimination (Amendment of Legislation) Regulations 2008

3.31 pm

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews) rose to move, That the Grand Committee do report to the House that it has considered the Sex Discrimination (Amendment of Legislation) Regulations 2008.

The noble Baroness said: The draft regulations were laid before the House on 6 March, and I confirm that their provisions are compatible with the European Convention on Human Rights.

The United Kingdom has a long tradition of legislating to protect people from discrimination. We have had protection from sex discrimination in employment, education, the provision of goods, facilities, services and the management of premises in Britain since 1975 and in Northern Ireland since 1976. It is in this context that the Government welcome the fact that European law is catching up with long-standing principles that are enshrined in our domestic law by extending existing European protection in employment-related areas to non-employment areas.

We welcome the European Council gender directive, which is implemented by way of these regulations in Great Britain and Northern Ireland. It will ensure consistency in sex discrimination protection throughout the European Union. Our proposals for implementation have been the subject of public consultation both here and in Northern Ireland. In Britain, that was alongside the consultation on the proposed Equality Bill, from 12 June to 4 September; and the Northern Ireland Executive consultation followed from 30 July to 21 September, setting out proposals that mirrored closely those for Great Britain.

The regulations introduce some new protections and extend others in existing sex discrimination law in the fields of goods, facilities and services—I am tempted to say “GFS” from now on; it might shorten our debate by about 20 minutes—and premises. In short, these regulations are a welcome stepping stone to the further reform of discrimination law that is

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intended to take place through the Government’s proposed Equality Bill in Great Britain. At the same time, there are some differences between what is required by the gender directive and the existing UK protections.

The regulations are being made under the European Communities Act 1972. The small number of amendments to the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976 are required so that additional protection in line with the gender directive applies to both women and men in the provision to the public of goods, facilities and services—regardless of whether such goods, facilities and services are provided free or are charged for—and the disposal or management of premises.

The most significant proposals on which we consulted between June and September 2007 in Great Britain, and in Northern Ireland between July and September, were the following. The first was a specific prohibition on sex and sexual harassment in the provision of GFS. Our legislation currently provides protection from discrimination but not from harassment. The second proposal was protection from discrimination and harassment in relation to GFS and premises for people intending to undergo, or who are undergoing or who have undergone, gender reassignment. That would extend protection to an estimated 5,000 people who are at present excluded from protection in the field of GFS. The third would express protection from discrimination in the field of GFS and premises for women on the grounds of their pregnancy and maternity. We do not have that explicit protection in this area of our legislation, although in fact many cases are likely to be covered by existing sex discrimination law. Fourthly, the regulations would introduce greater transparency where insurers offer differential premium and benefit levels on the basis of gender. The fifth proposal is a shift in the burden of proof requirements.

So, we have here a welcome opportunity to improve our existing laws in advance of an Equality Bill in Britain. The timetable for amending our legislation is determined by the directive, which required member states to implement it by 21 December 2007. It is important therefore that we act at the earliest possible opportunity to bring ourselves in line with European law.

I am sure that Members of the Committee will have noticed that these important regulations, which replace those laid before the House on 28 November, amend legislation in Great Britain and Northern Ireland. Let me explain why we have done that. Northern Ireland Ministers have competence to legislate on discrimination matters, and the intention was for similar regulations to be introduced there to the same timetable. However, it became clear late in the process that the First Minister and the Deputy First Minister could not reach joint agreement on all the policy proposals to implement the gender directive. A failure by part of a member state to comply with the directive will be considered by the European Commission as a breach by the whole member state—here, the UK—and that clearly was not an option.

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Although implementation is now already late, the Government considered that the most effective means of ensuring that the UK as a whole could comply with the directive was for regulations implementing the directive in Britain and Northern Ireland to be taken forward at Westminster. Northern Ireland Ministers have not objected to this course of action and we have had the support of Northern Ireland officials in drafting the regulations. Legislating in this way offers the most effective means of putting these additional protections in place in Great Britain and Northern Ireland as soon as possible after the deadline of 21 December 2007, which we are committed to doing.

I have spoken about the wide consultations on the changes. The Government presented the proposals for the draft regulations alongside the wider proposals for an Equality Bill for Great Britain in a single consultation package, so that stakeholders could see how the proposals fitted into the wider landscape of discrimination law reform. There was an equivalent consultation in Northern Ireland. We have noted and drawn on the consultations in drafting our final proposals.

These proposals are complex. I hope that Members of the Committee will forgive me if I go into a bit of detail as it is important to understand the range of changes. Protection against discrimination and harassment on grounds of gender reassignment is not new in UK law. We are simply extending the protection that already exists for employment. The Sex Discrimination Act and, in Northern Ireland, the sex discrimination order already provide protection from discrimination and harassment in employment and related areas for people who are planning to undergo, who are undergoing or who have already undergone gender reassignment. But we are clear that we need to extend protection on those grounds outside the workplace if we are fully to implement the directive.

The directive does not expressly confer protection in this field, but a joint European Council and Commission statement recognises the application of the principle of equal treatment in the directive to grounds of gender reassignment. The principle, that the right not to be subjected to direct discrimination on grounds of sex includes changing sex or gender reassignment, is not new. It was set by the European Court of Justice in a 1996 employment case. In interpreting the reach of the directive, we have taken our lead from the Council and Commission statement and from that 1996 judgment. In 1999, we introduced regulations outlawing discrimination on the grounds of gender reassignment in Britain and Northern Ireland in the field of employment.

We now have the opportunity to extend discrimination law protection on the grounds of gender reassignment to goods, facilities, services and premises. It might be helpful if I reaffirm what is not covered by these regulations in that respect, given that, in 2007, we had debates on related issues when we introduced the Equality Act (Sexual Orientation) Regulations 2007. These regulations make similar changes.

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As I think Members of the Committee will agree, it is unnecessary for me to repeat what I said in the extensive debate we had on those issues a year ago except to make the following points. Religious worship and observance fall outside the scope of the directive, so these regulations do not in any way affect such activities; nor do they prevent people holding the belief that it is wrong to seek to undergo gender reassignment. But the regulations prohibit discrimination and harassment in areas covered by the directive, such as services normally provided on a commercial basis. For legal certainty, and in response to comments we received from the Equal Opportunities Commission during the consultation period, we have clarified that in new paragraph 9(c) of Schedules 1 and 2 to the regulations.

The regulations simply outlaw a person being denied access to a shop or being the subject of abuse by a sales person, for example, because they intend to undergo, are undergoing, or have undergone gender reassignment. As we argued in relation to the 2007 regulations, an exception for individual religious believers to be exempt from the regulations—for example, the Christian owner of a commercially-run bookshop or cafe—would effectively create an individual conscience clause that would introduce a test that is so subjective that it would render the regulations ineffective for the purposes of implementing the directive and would therefore be unenforceable.

Apart from the directives, Parliament has already made its views clear that it is quite wrong in the United Kingdom today for people to be discriminated against because of the prejudices of others. The regulations extend those rights to a very small group of people who are currently unprotected in these areas. We are right to act with Europe to increase protection for people on the ground of their gender reassignment.

The regulations achieve the right balance between protecting religious liberty and human rights under the law, ensuring that people are free to hold and observe their religious beliefs but not to manifest them in such a way that treats one group of people differently from others.

I turn to harassment. Protection from harassment in the UK originated in domestic case law and was put on a statutory footing following implementation of earlier European directives. In employment and related areas, in 2003, we expressly outlawed harassment on the grounds of disability, sexual orientation and religion or belief; and on the grounds of age in 2006. In the case of race, the relevant directive has a wider reach, so in 2003, we outlawed harassment not only in employment and related areas, but also in goods, facilities, services and premises. In 2005 we introduced protection against sex, sexual and gender reassignment harassment in employment and related areas. Now the regulations will make it unlawful for a provider of goods, facilities, services or premises to subject a person who seeks to obtain those goods or use those services, or who is supplied with them, to sexual harassment, sex harassment or harassment on the grounds of their gender reassignment.

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There is, however, an additional change to which I want to draw attention. It was made following a judicial review brought by the former Equal Opportunities Commission. In March 2007, the court ruled that the definition of sex harassment in the Sex Discrimination Act 1975 should be recast to provide a slightly broader definition by reference to the relevant European directive, which itself provides a new definition of sex harassment. Put simply, that would, in the employment context, mean that where one person is telling a sexist joke to another person at work, and a nearby employee overhears and considers that this has violatedtheir dignity or created a hostile or offensive environment for them, they could make a claim that they have been subject to harassment related to sex. Such a situation is not covered by the existing definition of sex harassment, so that is an important change.

Regulations giving effect to that ruling were laid before Parliament on 14 March and are to commence on 6 April 2008. Because the sex discrimination order in Northern Ireland broadly mirrors sex discrimination law in Britain, equivalent amendments are being made to it.

Although the judgment addressed specific situations in employment and related areas and is related to the implementation of the relevant European directive covering employment and related areas, the gender directive uses the same definition of sex harassment as the European employment directive.The regulations therefore apply the same new definition of sex harassment introduced on 6 April, which will give effect to the judicial review judgment, to the fields of goods, facilities, services and premises. We will therefore have consistency within the Act. I hope that that will meet the concerns of the Equality and Human Rights Commission which, I know, wanted to be clear how the new definition would apply outside the employment area. In essence, therefore, from the date that the regulations come into force, a person seeking to access goods, facilities, services and premises will also be protected from sex harassment based on the new broader definition. This in turn addresses the concerns of the JCSI, which brought the House’s attention to the draft 2007 regulations in this respect. I am pleased to be able to say that the most recent report from the JCSI did not draw the attention of the House to any issues with regard to the regulations.

3.45 pm

The Merits Committee also considered the draft 2007 regulations. It concluded that the special attention of the House need not be drawn to them, but it did publish the Christian Institute’s evidence, which asserted that the draft regulations would implement the gender directive in a way that would infringe religious liberties and free speech. Annexe 2 of the Merits Committee’s 5th report of Session 2007-08 lays out our response. Likewise, the committee’s 15th report has not brought the special attention of the House to the regulations, but it has included further evidence from the Christian Institute and from the Lawyers’ Christian Fellowship, which raised similar concerns, and further information from the Government Equalities Office.

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That gives me the opportunity to say that, although I believe that I have already addressed many of the concerns that were expressed, I will pick up on the specific concern that we have unjustifiably broadened the definition of harassment. The claim is made because we have used “or” to link two aspects of harassment, whereas the gender directive uses “and”. Thus, in our regulations, a person need show only an “offensive environment” or that their dignity was violated. We have adopted this approach for the simple reason that the wider definition was established by case law in other areas of discrimination and that to change the definition not only would be inconsistent with other areas of discrimination law but would breach the principle of non-regression. In other words, it would dilute our law, and we cannot do that. In any event, the directive allows us to provide extra protection to the protection that is strictly required by it.

Many of the other points raised about gender reassignment harassment related to specific circumstances. Simply, if a claim of gender harassment in the provision of goods, facilities, services or premises is brought, the courts will need to balance out the competing interests of the transsexual person and the Christian service provider.

On pregnancy discrimination, the regulations explicitly prohibit discrimination against pregnant women who are seeking access to goods facilities, services and premises, thereby ending a reliance on sex discrimination case law. In so doing, we have adopted as far as possible the approach already established in employment. However, I reassure people who feel that we may have introduced a loophole into the law. Although the consultation did not seek views on defining pregnancy discrimination, the civil aviation sector expressed concerns that where airlines have policies not to carry late-term pregnant women on flights, these policies may amount to direct pregnancy discrimination, which is obviously prohibited.

The regulations therefore include a clarifying health and safety provision. An airline therefore does not discriminate on grounds of pregnancy if it refuses to allow a woman in the late stages of pregnancy to fly because it is reasonable for it to believe that to allow her to fly would create a risk to her health and safety and if it applies this health and safety policy similarly to people with other physical conditions which it reasonably considers would create a risk to their health and safety. A comparable case might be that of someone with a heart condition. The provision applies equally to sports that could put a pregnant woman at risk. I am given the example of bungee jumping, although other things would probably come into that category.

On maternity discrimination, there are new protections for women who have recently given birth. The directive does not offer a definition of maternity, but responses to the consultations overwhelmingly supported our proposal to define it by reference to the period of time that has elapsed since childbirth so as to provide the greatest legal certainty. We therefore decided that the length of time that has elapsed since childbirth will determine the period of protection from maternity discrimination. That received general

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agreement, but there was less agreement on the length of the protected period. The consultation suggested 52 weeks as a basis for discussion, while the wide variety of respondents’ views ranged from as little as eight weeks, in the case of some insurers, to as much as three years in the case of pro-breastfeeding lobbyists. We have ruled out the higher and lower extremes as being difficult to justify, given that we believe that the purpose of the provision is to protect the unique relationship between a mother and her newborn child. We have opted for a period of 26 weeks following the birth of the child as an appropriate period of time for a new mother to be protected from maternity discrimination. We have arrived at that period of time because it is a sensible balance, meeting, but not exceeding, what was intended by the directive.

On insurance changes—and I am getting to the end—Section 45 of the Sex Discrimination Act and Article 46 of the Sex Discrimination (Northern Ireland) Order currently enable the insurance industry to treat men and women differently, provided that the treatment is reasonable and is supported by reliable actuarial evidence. The directive allows us to continue to permit gender-based differences in insurance premiums and benefits, but it now requires that data relevant to the use of gender as an underwriting factor are compiled, published and updated. This publication requirement is new. It will enable customers to see how differences in premiums and benefits on grounds of gender arise, for example in motor insurance.

The differences in treatment between men and women must be proportionate to the underlying data. However, the regulations make an exception for costs relating to pregnancy or maternity. Those must not be reflected in differences in premiums and benefits, which can sometimes be the case at present. The Government will defer this specific provision relating to pregnancy and maternity costs until 22 December 2008, to give the insurance industry sufficient time to prepare for the change with minimal disruption.

The new express ban on discrimination on grounds of pregnancy is likely to impact on existing insurance practices where, for example, pregnant women are sometimes refused travel insurance altogether in the final weeks of their pregnancy. With effect from December 2008, insurers will not be able to increase premiums for women to reflect the cost of pregnancy or maternity. For example, they will not be able to charge more to expectant mothers or those expecting twins or a multiple birth. We have worked closely with the insurance industry to arrive at these plans and in developing our implementation proposals. The Treasury has published guidance for the industry on the procedures that must be followed to comply with the directive.

Finally, the burden of proof is very straightforward. In the areas that we have been discussing, the burden of proof will now be reversed. Where the claimant can show a prima facie case of discrimination, or facts from which it can be presumed that discrimination has taken place, the burden will shift to the respondent to show why there was no such discrimination.

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For the purposes of today’s debate, I have concentrated on those areas that may be of most interest to Members of the Committee. Once we implement this directive in the United Kingdom, we will have increased legal protection for people who wish to access or use goods or services provided to the public as set out by the directive, without fear of discrimination on grounds of sex, gender reassignment, pregnancy or maternity, or sex, sexual or gender reassignment harassment. I commend the regulations to the House. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Sex Discrimination (Amendment of Legislation) Regulations 2008. 13th report from the Joint Committee on Statutory Instruments.—(Baroness Andrews.)

Lord Skelmersdale: I start by thanking the Minister for that very extensive speech. There are a lot of subjects wrapped up in the regulations, and I do not want to concentrate on most of the subjects on which she has enumerated this afternoon. When I hear a speech lasting 22 minutes from a Minister introducing regulations, I have a nasty suspicion that there is something to hide. I am going to absolve her of that today, but perhaps not in the future; we shall see.

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