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We are discussing today an important review of the Sex Discrimination Act 1975 and the Sex Discrimination Act 1975 (Amendment) Regulations 2007, which were made on the back of the Act. It is a shame that this discussion did not take place when it was initially intended to in December, but the Government have shown only too frequently of late that they find sticking to timetables more than a little testing. So to begin discussion of this long awaited topic we will need to refresh our memories on what it is about. As the noble Baroness said, these amending regulations bring statute law into line with case law. They are also a response to the Equal Opportunities Commission’s ruling that the previous regulations amending the Act fell short of the 2004 European Community’s gender directive’s intention to ensure that women in the workplace are not subjected to,
- “any unwanted conduct related to their sex which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”.
That is a very clear definition of harassment. This is to be illegal in future in the areas about which the noble Baroness spoke, and it is absolutely right that that should be the case.
The result is that instead of depending on individuals making complaints about sex discrimination, the duty places the legal responsibility on public authorities to demonstrate that they treat men and women fairly. The duty will affect policy making, public services such as transport, and employment practices such as recruitment and flexible working. These Benches stand in firm support of any directive or action that any Government can take to remove sexual prejudice or exploitation. We therefore support the implementation of the regulations and the intention that lies behind them.
Before I explain why I am not entirely satisfied with these new regulations I feel it necessary to make it clear for the record that I believe that much in them
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The regulations being discussed today have been much anticipated. The judicial review held in late February 2007 exposed the Government’s previous regulations made in 2005 to have been a failure. Lack of clarity in the drafting meant that women risked losing the full protection against pregnancy discrimination that they now have under UK case law. It also did not stipulate that pregnancy and maternity leave must be counted by employers as continuous service for the purposes of promotion. That sentence sounds a little odd—quite how pregnancy can be continuous service rather defies my imagination. The High Court ruled that the 2005 regulations not only failed to implement the 2004 gender directive but made life worse for pregnant women than the then law.
So, it is as clear as daylight that there is an immediate and obvious need for new regulations. But I have been disappointed to see how slowly the Government have responded to this need. Perhaps they do not find regulations particularly pressing or as thrilling as getting new legislation on to the statute book. If one looks around the Grand Committee, one sees that these regulations are receiving not nearly the attention they would have had if they been discussed in the Chamber. Whatever the case, as the Explanatory Notes explain in paragraph 7.9, the Government decided to consult on the gender directive as part of a wider consultation on proposals for an Equality Bill, as the noble Baroness mentioned. However, the original start of the consultation got pushed back from the planned start date of March. This was due to the need,
That is all well and good in theory but these regulations are not one and the same as the Equality Bill. The noble Baroness explained that a little but it would be extremely helpful if she would expand on that in her response.
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I was glad, too, that the noble Baroness agreed with me that the regulations were delayed because the Government acceded to the request of the First Minister in Northern Ireland that the regulations should cover the whole of the United Kingdom so that they need not be debated separately in the Province. There is a history behind that but I do not think it would be profitable for us to go into it today.
Whatever the reason for this delay, the start of the consultation period had disappointing implications for the 2007 regulations. As the consultation was finally published on 12 June and the responses had to be received by 4 September, there was less than three months’ consultation and it was over the summer
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It is perhaps not unsurprising then that the consultation process has not come up with entirely sufficient answers to all that is proposed in the regulations. I refer the Committee to the definition of harassment at paragraph 7.8 of the Explanatory Notes. It seems as though this definition of harassment is still being consulted on as a result of the Equal Opportunities Commission judicial review. To avoid further delay and further uncertainty, could this issue not be tidied up in the very near future? How far is the judicial review from reaching a verdict?
Given the Equal Opportunities Commission revelation that where sexual discrimination is most “rife” is in the employment domains of bars, restaurants and hotel trades, which are estimated to employ more than 670,000 women, I find the explanation in the Explanatory Notes that the new regulations will cost business around £12 million only too likely. Although it is of course a necessary cost, it is a considerable one. I fear that some less honourable businesses may shirk it to cut financial corners. Can the Minister assure me that the Government have made special provisions to ensure that all businesses will comply fully with the legislation when it comes into force? What steps have the Government taken to try to minimise the cost of these regulations to business to make them seem more attractive?
Even from a brief glance at the regulations one can see that one of their clear occupations is with the reconsideration of transsexualism or gender reassignment. I shall take a random example: Regulation 4. This regulation amends subsection (2A) of the Sex Discrimination Act to extend protection from direct discrimination on grounds of gender reassignment to some 5,000 people, as I understood the Minister to say. This, in addition to the other protective extensions provided within the regulations, will certainly result in a significant increase in the number of employment tribunal cases made in the United Kingdom. Can the Minister assure me that arrangements have been made so that the tribunals will be able to cope sufficiently with this increase in hearings?
Everyone should have an equal chance. I am relieved that the Government have the sense to go some way towards realising this very simple but very important objective in their new regulations. They did, after all, need to right the wrongs of their former legislation and make our culture a more just place for women to live and work in. I hope that this time the Government have it right and that we will not have to go through this whole operation again.
Lord Lester of Herne Hill: The Minister deserves our sympathy and gratitude for having to explain at great speed such an obscure and complicated subject.
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The subject is very complicated. I find it particularly so because there are different directives and different regulations. I shall probably get this wrong, in which case I shall be corrected. There are the Sex Discrimination Act 1975 (Amendment) Regulations 2008, which implement Council Directive 113 and are concerned with implementing the principle of equal treatment between men and women in the access to and supply of goods and services available to the public. There is also another set of regulations, the Sex Discrimination (Amendment of Legislation) Regulations 2008, which are to come into force on the same day, 6 April. They implement another directive, which I will come to. As the Minister said, implementation should have been completed by 21 December 2007, but the process of implementation was delayed for various reasons, which I understand and sympathise with. The Minister has explained that there is a pressing need to implement the directive; we agree.
Directive 113 is clear that there should be no direct discrimination, including less favourable treatment for women by reason of pregnancy and maternity. The Minister has explained why the Government have chosen to limit protection to the first 26 weeks after birth. It is strongly arguable that that limit of 26 weeks is not consistent with the decisions of the European Court of Justice in Lewen against Denda and in Brandenburg against Sass, as applied by the High Court in judicial review proceedings in the EOC against the Secretary of State for Trade and Industry.
This is not the place to argue whether that is right or wrong, but there is no material difference between the wording of the equal treatment amendment directive 2002/73/EC, known as ETAD, and the directive here being implemented. In my view, it is strongly arguable that to comply with the directive, the period of protection ought to be extended. This is obviously a very important issue, which affects a large number of women and men.
During the Discrimination Law Review consultation, the EOC raised a number of important concerns, only some of which are being met in these and the other regulations. Others are outstanding. I have drawn those to the Minister's attention. Again, this is not the place in which to go into each and every one, but we are grateful for the Minister's assurance that there will be discussions as a matter of urgency, so that the matters raised by the commission and its successor, the Equality and Human Rights Commission, may be taken into account in developing policy on the proposed performing legislation and to secure full compliance with the UK's Community obligations.
Perhaps I may give an example—I will not give a whole series of them. Article 2(a) of the directive defines direct discrimination as occurring,
- “where one person is treated less favourably on the ground of sex, than another is, has been or would have been treated in a comparable situation”.
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It says “on grounds of sex”, not “on grounds of her sex”. But Section 2(1)(a) of the Sex Discrimination Act 1975, for which I suppose I am partially responsible as one of its architects more than 30 years ago, is narrower and applies only to the grounds of the complainants’ sex, rather than on grounds of sex. Incidentally, that is also narrower than the definition of direct racial discrimination in the Race Relations Act 1976, which refers to racial grounds but does not require the grounds to be the complainants’ ethnicity. That is one important problem about the concept of discrimination.
There is also a similar problem with gender reassignment, where Section 2A of the Sex Discrimination Act is narrower than the directive, both on direct and indirect discrimination. I perfectly understand the reasons for adopting the definition of harassment as it has been in the regulations, but may I strike a cautionary note? As the Minister may know, we in this House have again and again resisted the notion of religious harassment involving violating a person’s dignity on religious grounds for free speech reasons in debates that were similar to the debates that we had about religious hate speech, which were important. While I understand the very broad definition being given to harassment and the concept of gender, it should not be taken as a precedent on the basis that one size fits all and that one would do precisely the same in the area of religion, which gives rise to rather different issues.
On insurance, in response to the consultation, the EOC welcomed the proposal that the data on which insurance companies rely to calculate premiums are to be made available to the public. However, the commission explained in some detail, in answer to question 80 of the consultation, its view that the implementing regulations do not comply with the directive. The Minister has explained that the Government have worked closely with the insurance industry in developing the implementation proposals. I ask him for an assurance that the Government will also work closely with the commission to ensure full compliance with the directive by 22 December 2008.
My own view is that it is as unfair to discriminate for the purpose of insurance on the grounds of sex on the basis of actuarial data as it is on racial grounds. I have always believed that one should look at each person on the basis of his or her merits and not on the basis of their gender. Indeed, I think that women will now die as quickly as men if they lead the same appalling lives of stress and strain in this place or elsewhere, and so to generalise on the basis of the death rates of all women or all men is an invidious and unfair generalisation. Therefore, although the Government, on behalf of the insurance industry, have taken a more moderate line than that, I hope that in the long run actuarial premiums will no longer be calculated on the basis of gender-based statistics.
I remember the great American judge, Sandra Day O’Connor, in a leading case many years ago pointing out that some generalisations, even if true, should not be acted on—she was referring particularly to gender—so the mere fact that there are different death rates between men and women should not, if you
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On freedom of religion, I am delighted that no one here today seems to be taking up a different cause for fighting faiths. I entirely agree with the Minister that religious worship and observance fall outside the scope of the directive and are not affected by the regulations. The commission expressed concerns during the consultation, in paragraphs 79.2 to 79.14, about the compatibility with the directive of sweepingly broad religious exemptions, and I fully share those concerns.
The sprawling, tangled, impenetrable thickets of British anti-discrimination legislation are obscure and incomprehensible to everyone except a handful of specialist lawyers. Although I regard myself as a specialist lawyer, I, too, find some of it almost incomprehensible. The legislation contained in many inconsistent statutes and in hundreds, if not thousands, of regulations is in urgent need of comprehensive, user-friendly reform, so that everyone can enjoy access to justice. There is a pressing business need, as well as a need based on simple justice for victims, for the introduction at long last of a single equality Act that works in practice to eliminate discrimination based on sex and other grounds and to promote genuine equality of opportunity and treatment. My party will support the Government if they introduce legislative reforms that meet the high standards needed by employers, trade unions, service providers and vulnerable individuals and groups.
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These regulations are the latest example of the Government’s use of the powers conferred by the European Communities Act 1972 to add further layers of subordinate legislation to give effect to EU equality legislation. That has a great advantage for Governments, especially if they have a pressing parliamentary timetable, but it has the disadvantage of making it virtually impossible for Parliament to improve the legislation before it comes into force and for ordinary mortals to understand the meaning and effect of what is being done for their benefit, still less to translate the relevant legal principles and rules into practice. Here, I echo what has been said about tribunals, which are not well geared to deal with complicated cases of this kind.
Equality without discrimination is an axiom of fair and rational behaviour, but if it is not to remain theoretical and illusory, it needs to be underpinned by a proper law and put into practice. Let me give one example of the fatuity of the way in which we legislate. It is not about gender, but about race. For reasons which I do not need to elaborate on—the Minister knows what I mean because she answered my Written Question last week—a black person has to face a heavier burden of proof than a Sikh or a Jew in bringing a race or a gender case. It is completely fatuous and is because of the narrow, legalistic reading of the relevant race directive, which caused the Government to say that although it referred to
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We fully support these regulations, subject to the reservations that I have given, on the basis that a crust is better than no bread. However, we look forward to receiving a more wholesome loaf and, if we may, to suggesting a recipe to some of the cooks.
Baroness Andrews: I am extremely grateful for the welcome given to these regulations and I entirely take the point made by the noble Lord, Lord Skelmersdale, that all parties are united in their determination to outlaw discrimination. We are very grateful for his party’s support on that. I always feel slightly intimidated in debates like this when I am confronted by two Members of the Committee with very wide experience, both of whom are forensic but who come from slightly different angles. It has been a useful debate and I apologise for speaking for a rather long time. I did that not because we have anything to hide but because it is extremely important, given the complexity and technicality of these regulations and the fact that they are part of an ongoing discourse, to put on record the implications as far as we could anticipate them.
I am glad that the noble Lord, Lord Skelmersdale, recognised the sense of urgency, but he also raised some important questions about the timetable. I cannot add a great deal to what I said about the timetable as it proceeded past the autumn, but because we were discussing with Northern Ireland, under the Memorandum of Understanding, how we could take these forward, given the complications that had arisen, it was necessary for some debate to be had, so there was another delay in the process.
As for the summer consultation, it became more complex and wider in general because we bundled consultation on this with consultation on the Equality Bill. Moreover, the machinery of government changes; new Ministers had come in, inevitably with slightly different perspectives and views on how to add what they wanted to the consultation. However, the consultation period was for the full 12 weeks. That is the good practice as set up with the Cabinet Office, and we observed it in this case.
The noble Lord’s other important questions were particularly practical and it is important to clarify them. He asked, for example, about the costs to business. These changes are relatively minor compared with the sorts of requirements imposed on business since 1975 not to discriminate on the grounds of sex. Those were the big changes, and these are relatively small. He is, however, quite right. This is the sort of issue where we continue to listen to business and discuss. We will be watching the implications of the change.
The noble Lord also raised the issue of tribunal capacity. These cases will go to the courts and not to tribunals. Protection under the 1975 Act has existed since 1975. We can draw some comfort from the fact that there have been very few such cases. We therefore do not anticipate a great number of additional cases
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Lord Skelmersdale: I am grateful for that. My particular question surrounded the expression “heavily pregnant” and when “heavy” becomes “intolerably heavy”.
Baroness Andrews: I feel particularly qualified to answer that. We do not define “heavily pregnant” in the regulations, and it would be an act of absolute foolishness to try to do so. It was an example. If a service provider is aware that a woman is pregnant and that it raises a health and safety issue, they should take that into account. We were not trying to draw a legislative boundary based on the size of the bump of the lady in question. It is just an illustration. The qualification for health and safety reasons is very pragmatic and common sense. I appreciate what the noble Lord said about how the regulations were proportionate in that sense.
I am grateful to the noble Lord, Lord Lester, for giving me advance warning of the sorts of issues he wanted to raise. I addressed some of them in my remarks on the specific changes we made to the definition of “harassment”, for example, in relation to the judicial review. As the two sets of regulations have virtually identical titles, perhaps I may say again, for purposes of clarification, that the regulations that actually introduce these changes are the Sex Discrimination Act 1975 (Amendment) Regulations 2008, which amend the 1975 Act. The regulations that we are discussing today come into force at the same time. Both sets are governed by the Sex Discrimination Act 1975, so the change of definitions will apply equally to both. Of course, they have only slightly different titles, so it is a bit confusing.
Lord Lester of Herne Hill: I am grateful for that, but the problem is that we are considering only one of two sets of regulations. My points go beyond this debate, which is why we hope there will be close consultation with the Commission. Both sets of regulations will have to be compatible with both directives. That is what I am really on about.
Baroness Andrews: Absolutely. As I was going to say, because we have been so aware of the EHRC’s concerns and because we are in a process which will culminate in a new Equality Act, we are absolutely intent on continuing the dialogue that we have had with the EHRC. We know that there are outstanding issues; the noble Lord referred to some of them. A meeting is fixed to take place in the next couple of weeks. As we go through this process it is important that we keep close to this in the way that we said we would when we talk for example about insurance provisions.
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