Before we begin, I have a few preliminary announcements to make. The Programming Sub-Committee met earlier this morning and agreed a revised resolution. Copies of the new resolution are available in the room. Members may, if they wish, remove their jackets during Committee sittings. Please ensure that mobile phones and pagers are turned off or switched to silent mode. I remind the Committee that there is a money resolution in connection with the Bill, copies of which are available in the room.
Adequate notice of amendments must be given. To be eligible for selection at a Tuesday sitting, amendments must be tabled by the rise of the House on the previous Thursday. For a Thursday sitting, amendments must be tabled by the previous Monday, as a general rule. I and my fellow Chairman do not intend to call starred amendments.
Not everyone is familiar with the process of taking oral evidence in Public Bill Committees. It might help if I briefly explain how we will proceed. The Committee will first be asked to consider the programme motion on the amendment paper, for which debate is limited to half an hour. We will then proceed to consider a motion to report written evidence, and then a motion to permit the Committee to deliberate in private in advance of the oral evidence sessions, which I hope we can take formally.
Assuming that the second motion is agreed to, the Committee will move into private session. Once the Committee has deliberated, witnesses and members of the public will be invited back into the room and our oral evidence session will commence. That will be at about 11 o’clock. If the Committee agrees to the programme motion, oral evidence will be taken today and next Tuesday, and the Committee will revert to the more familiar proceedings of clause by clause scrutiny next Thursday.
I call the Minister to move the programme motion. I remind the Committee that the text of the motion is printed on a separate paper.
I beg to move,
(1) the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 2 June) meet—
(a) at 4.00 p.m. on Tuesday 2 June;
(b) at 10.30 a.m. and 4.00 p.m. on Tuesday 9 June;
(c) at 9.00 a.m. and 1.00 p.m. on Thursday 11 June;
(d) at 10.30 a.m. and 4.00 p.m. on Tuesday 16 June;
(e) at 9.00 a.m. and 1.00 p.m. on Thursday 18 June;
(f) at 10.30 a.m. and 4.00 p.m. on Tuesday 23 June;
(g) at 9.00 a.m. and 1.00 p.m. on Thursday 25 June;
(h) at 10.30 a.m. and 4.00 p.m. on Tuesday 30 June;
(i) at 9.00 a.m. and 1.00 p.m. on Thursday 2 July;
(j) at 10.30 a.m. and 4.00 p.m. on Tuesday 7 July;
(2) the Committee shall hear oral evidence in accordance with the following Table—
Tuesday 2 June
Until no later than 12 noon
Equality and Diversity Forum
Equality and Human Rights Commission
Tuesday 2 June
Until no later than 1.00 pm.
Help the Aged and Age Concern
Childrens Rights Alliance
Disability Charities Consortium
Tuesday 2 June
Until no later than 5.00 pm.
Press for Change
Race on the Agenda
Tuesday 2 June
Until no later than 6.00 pm.
Womens National Commission
Women Like Us
Tuesday 9 June
Until no later than 11.30 am.
British Humanist Association
General Synod of the Church of England
Catholic Bishops Conference
Tuesday 9 June
Until no later than 12.30 pm.
Confederation of British Industry
Association of British Insurers
Federation of Small Businesses
Chartered Institute of Personnel and Development
Trades Union Congress
Tuesday 9 June
Until no later than 6.00 pm.
Government Equalities Office
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 6; Schedule 1; Clauses 7 to 29; Schedules 2 and 3; Clauses 30 to 35; Schedules 4 and 5; Clauses 36 to 49; Schedule 6; Clauses 50 to 75; Schedule 7; Clauses 76 to 78; Schedules 8 and 9; Clauses 79 to 83; Schedule 10; Clause 84; Schedule 11; Clauses 85 to 89; Schedule 12; Clauses 90 to 93; Schedule 13; Clause 94; Schedule 14; Clauses 95 to 101; Schedules 15 and 16; Clauses 102 to 110; Schedule 17; Clauses 111 to 143; Schedule 18; Clause 144; Schedule 19; Clauses 145 to 179; Schedule 20; Clauses 180 to 182; Schedule 21; Clauses 183 and 184; Schedule 22; Clauses 185 to 189; Schedule 23; Clauses 190 and 191; Schedule 24; Clauses 192 and 193; Schedule 25; Clauses 194 to 198; Schedules 26 and 27; Clauses 199 to 201; Schedule 28; Clauses 202 to 205; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 7.00 p.m. on Tuesday 7 July.
Thank you for those helpful guidelines, Mr. Benton, and I look forward to serving under your chairmanship during the oral evidence sessions, and under the chairmanship of your co-Chairman, Lady Winterton. I welcome every member of the Committee to our proceedings. The Bill is excellent, but it will undoubtedly benefit from the input of the public, who are to give evidence to us, and from the scrutiny in which we shall engage. The original programme motion was tabled following the resolution agreed by the Programming Sub-Committee on Tuesday 19 May.
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.
E01 Disability Charities Consortium
E02 Chartered Institute of Personnel and Development
E03 Alliance for Inclusive Education
E06 Friends, Families and Travellers
E07 Age Concern and Help the Aged
E08 Young Equals
E09 Equality and Diversity Forum
E10 Equal Rights Trust
E12 Discrimination Law Association
E13 British Humanist Association
E14 Catholic Bishops Conference
E15 End Violence Against Women
E16 Support Transgenre Strasbourg
E17 Equality and Human Rights Commission
E18 Equality and Human Rights Commission Disability Committee
E19 Finance and Leasing Association
E21 Gender Identity Research and Education Society
E23 Carers UK
E24 Disability Charities Consortium additional memorandum
John Wadham: The Equality and Human Rights Commission has circulated this document, which is in a better colour than this photocopy. Secondly, we have sent a specific submission to the Committee. Thirdly, there is a specific submission from the disability committee, which is part of the commission. All Members should have three documents from us. If you do not, we can get them circulated after the session.
Thank you, Mr. Benton. I want to start with the socio-economic duty. There is a clear problem with socio-economic inequalities. Just looking at the views of Cabinet Ministers, Alan Johnson and Alan Milburn have come out with memorable quotes about the fact that it is more difficult, and becoming even more so, for people from poor backgrounds to escape their upbringing. The obvious question is not that there is a problem, but how one deals with it. Perhaps the witnesses could explain whether they think the approach that the Government have taken in the Bill is the right one and is likely to be effective.
Sarah Spencer: We think that it is a helpful but modest measure. It does not have any enforcement provisions, but it is a measure that will encourage strategic bodies simply to think about the importance, as you said, of addressing socio-economic inequality. It does not require the bodies to do anything specific other than ensure that they have regard to the need to do that, whatever their functions. We think that the Bill is proportional and useful, but modest.
John Wadham: We have set out in our briefing the fact that we also support the development of the socio-economic duty. In our analysis of the issues relating to our core mandatesrace, women and gender, disability, sexual orientation, religion, belief and agethe key factor in many issues that people face is, unsurprisingly, poverty. Their discriminatory treatment has significant socio-economic consequences. Therefore, it is not too much of a leap, from our perspective, to ask the question whether more needs to be done, not only for any particular group, but for the groups in general, to ensure that they are in a better position and can compete on equal terms with others.
Nor is it a big leap to ask public authoritiesparticularly the strategic onesthe question whether they are delivering their services in a manner appropriate to everyone in their area, particularly in the context of poorer groups. I think it is a sensible way forward, which the commission supports. The commissions remit extends beyond what we might call the traditional strands and ask questions about inequality in general. That is why we will promote the provision.
To deal with your second question on how effective the Bill will be, that depends on the extent to which the public authorities understand how it works and the extent to which they can use it effectively. That would be the $64,000 question. As Sarah said, it is a modest development because it says only that they need to consider the issue when they are making decisions about their overall policy. I see no reason why that is not going to benefit the people it is designed to benefit.
I will come back with one further question, if I may, Mr. Benton. If the Bill is not effective and is no more than political posturing, how will it drive organisations to do things differently from what they are doing today? If they are doing this already, the measure will be meaningless and have no effect. In what way will it change how public sector organisations behave?
John Wadham: We have seen some good examples of the general public sector duty in relation to equality when, in initiating new policies, public authorities ask the extent to which they relate to race, gender or disability. Evidence shows that that is making a difference. It seems that that is the best example we have of such a duty, and I see no reason why it will not be effective. The cost implications will be relatively small because the public authority will have to ask how it is delivering to all the people entitled to its service.
It could be said that that is something that public authorities should be doing in any eventin other words, asking themselves questions not only about equality strands, but about socio-economic issues. It seems to promote a public duty on them to concentrate their minds. I am sure that there will be examples when people look again and services are developed that do not currently exist or different approaches will be taken when people who are discriminated againstthose who suffer socio-economic disadvantagesbecome better off.
Sarah Spencer: If the Committee wants to be extra sure that the Bill will have an impact, the place to look is transparency to see whether there should be a requirement in the specific duties under the regulations for bodies to say what they are doing with the provision. Rather than coming as an enforcement measure, that requirement would shine a little light on what the bodies were doing and it would be easier for organisations to ask appropriate questions.
Like the commission, we are relatively confident that the provision, such as it is, will ensure that organisations take such matters into account. It will also enable people to ask the right questions of the authority about whether it is taking those matters into account.
Do any of you have concerns about the discretionary powers that are given to Ministers under the Bill, and the instability that that might cause in equality law, which the Bill will hopefully sort out for the next 20 years? The Government of the day may change. Quite a lot of powers in the Bill are left to the discretion of Ministers in the future.
Sarah Spencer: We would probably want to highlight the exemptions to the age provisions. We attach huge importance to how the Bill extends protection from discrimination to older people in the use of services. Clause 193 gives the Government carte blanche to design the exemptions, and that is unfortunate. We understand why they are doing it. They want to consult during the summer. We suggest that, having consulted on the exemptions, they table appropriate amendments to the Bill in the autumn when it is discussed in the Lords, so that matters are specified in the Bill rather than leaving them all to subsequent regulation.
John Wadham: I am generally in favour of having many of the measures in detail in the Bill. It is an impressive Bill. Those who helped to draft it can be proud. The issue for me is at what point during that process we stop. In an ideal world, it would be good if the issues of age and exemptions were in the Bill. There is no doubt about that, and I hope that age discrimination provisions in relation to goods, facilities and services can be in the law as soon as possible. However, I understand why that was not possible given the timetable for the Bills publication, so the key question is whether we shall get this Bill or have to wait. It would be better for us to get the Bill and for Parliament to scrutinise the exemptions in the best way that it can, given that they will be dealt with under secondary legislation.
No. I am concerned about anything that is kicked into the long grass in case it does not happen. I was trying to see whether you felt likewise.
John Wadham: I absolutely want to see provisions put in place as soon as possible. We know, particularly for older people but for young people too, that there are issues about ensuring that we do not lose the positive benefits that currently exist. Therefore, there will be processes of negotiation and consideration. It is a balance. There will always be a time when the Bill needs to be published, and we must get on with that.
John Wadham: I should declare a conflict of interest because the commission is charged with producing statutory guidance as well as other guidance. We want to ensure that when the Bill is enacted, there is as much information as possible so that everybody, whether they are employers, employees or public authorities, can understand what it means. For many people, even lawyers, it is difficult to understand what it means, and we want to do the best job we can. If the Bill were enacted in two weeks time, I do not think that our guidance would be ready. We want it to be introduced as soon as possible but only in the context of having material that enables people to understand its effects.
John Wadham: I can report only what I know. I understood that the Scottish Government have decided that this should not apply to Scotland. There are continuing negotiations with Parliament and the Government aimed at ensuring that it does. Our approach would be that if the legislation is justified in England and Wales, it is justified in Scotland. Issues of devolution must be sorted out in relation to both devolved and non-devolved matters and I hope that those matters can be sorted out. Whether that is done by the Westminster Parliament and Government, or those in Scotland, this should apply to all strategic public authorities across all three countries as soon as possible.
John Wadham: My Scottish colleagues are talking to both the Parliament and the Government, as well as to the Government in Westminster, to see whether we can ensure that the legislation covers all public authorities across all three countries in the same way. We will continue to do that. My colleagues have started to think through how that might be possible.
In the recent Work and Pensions Committee inquiry into the Equality Bill, one of the consistent criticisms made about the existing duties on public sector bodies was that there was little recognition of the difference between outputs and outcomes. Given the nature of socio-economic inequality, will it be easy for public sector bodies to appreciate that aspect?
John Wadham: It is much easier to concentrate on outputs in the public sector and to measure what has been done. Inevitably, it is more difficult to demonstrate an effect in the real world, but we welcome the public sector equality duties as set out in the Bill on the basis that they will have a more significant effect in the real world. The job of the Equality and Human Rights Commission will be to enforce those public sector equality duties. We do not have the same enforcement powers in the Bill in relation to socio-economic duties but, as Mr. Harper said, the real test is about whether this will make any difference in relation to the effectiveness of the duties. I am confident that it will have an effect. The question for all of us is how effective the duties are going to be. That is a challenge for public authorities and the Government in relation to the guidance or regulations that they then make.
Sarah Spencer: The wording in respect of public duties makes a shift in the right direction for the real problem that you identified. The fact that the duty is now not just to promote equality but to advance it, makes it clear that the intention is to get somewhere with this, not just to do something. The fact that the clause spells out some of the outcomes that are intended, which was not in the previous legislation, and the fact that it is a single duty now, rather than public bodies having to deal with a lot of separate duties, are an advantage. Having said that, we need to look carefully at the specific duties in the consultation on that over the summer to see whether they focus on procedures, which has been a problem in the past, or whether they facilitate a focus on outcomes. I emphasise the importance of transparency. We need to see the position that the public body started with, where they have now got to and what steps they have taken in between.
May I pursue that, particularly in the context of health inequalities, which make up a big part of the socio-economic side of it? You are probably as aware as I am that many county councils have created the post of a director of public health in association with their primary care trusts and are focusing on addressing health inequalities within their area in a very aggressive way, which is to be much commended. What additionality do you see this providing in that sort of situation?
Sarah Spencer: What both sets of duties should provide is a catalyst that requires the public bodies to take into account the need to achieve these outcomes. They are so important, relative to the old system of anti-discrimination which rested on remedies. These duties put the responsibility on to the service provider to look at the question of whether we are delivering equality. Until this socio-economic clause was included, the question would have been whether we were delivering equality on grounds of race, gender and so on, but it now includes that additional dimension so that service providers have to ask themselves that question. That should act as a catalyst to them to do what we would all expect them to do anyway, which is to ensure that they are providing a fair service to everyone, but it is a provision which requires them to ask themselves that. What is particularly important is that it requires them to look at the evidence and then have a proportionate response to it. It should be a driver of actions.
May I pursue that further? Are you making the criticism that not enough public bodies—particularly local authorities—are taking this into account, and therefore it is a general criticism of what they are doing, or are you pointing to something that is going to be achieved as a result of tackling socio-economic inequality through this Bill that is additional to what they are doing now?
Sarah Spencer: The view is that, if we look at the evidence on health inequalities, for instance, we can see that there are sharp disparities between different sections of the public. Health providers are the bodies with the greatest capacity to do something about that and this is providing them with a duty to do so. It is not necessarily suggesting that the performance of every health provider at the moment is inadequate, because there are clearly some very good performers, but it is a measure that should help to raise the performance of others so that they are all working towards that objective and we can see if they are doing it.
John Wadham: We have looked at the ways in which the current three equality duties are taken account of in relation to public authorities, and unfortunately it is sometimes an add-on. Sometimes it does not inform the decision-making process that leads to the policy and therefore affects the substantive policy. It is a case of, Now let us look at what the effect is in relation to women, race and disability. What we need to do with the socio-economic duty is to ensure that the question is asked at the point in time when people are designing their policies, rather than afterwards. If we can get public authorities to do thatI am not saying it is easy, in relation either to the equality duty or to this new proposalthe chances of this working and delivering greater and more effective outcomes are significant. How do we measure that? I cannot comment on the example you gave as to whether it would make those bodies better, but I would be surprised if the public authorities that do this properly did not deliver better outcomes for people who are disadvantaged because of their socio-economic status. Invite me back in five years time and we shall find out.
May I pick up on those answers and push a little further? Do public authorities not already do this? Do they not already worry—in some cases, obsessively, and rightly so—about socio-economic inequality and whether they are achieving the right set of outcomes? Health outcomes, as John Howell was saying earlier, are particularly intractable. Are health authorities already worrying about whether they are putting the right level of resources into an area with high indices of multiple deprivation?
John Wadham: The commission has not done a lot of work on the socio-economic duty because it has not existed before and the commission has existed for only 18 months. However, going back to the comparison with the equality duties, I can say that there are different groups of public authorities that perform in different ways. Somethe good oneswill be asking the question whether there are any other duties, but others will not.
On socio-economic equality in relation to how services are delivered and policies decided, my guess is that that may be determined, to some extent, by the political make-up of a local authority or whatever else it is. The issue for the Equality and Human Rights Commission is that this is a key issue of equality and how we ensure that everyone delivers. Therefore, it needs to be written into the law; in other words, You must take due regard of this factor when making decisions about policy or delivery of those services.
I am sure that no one would argue with the importance of achieving that. What we are discussing is whether it will make any difference and whether it is the right method for achieving that. A question to all three of you: do you have any evidence that could be submitted to the Committee in the next little while of public authorities that are not considering the issue adequately, in your view?
John Wadham: I shall certainly go back and talk to my colleagues and ask whether we have such evidence. As I said, it is currently not a duty, but evidence that I can produce at the moment relates to the equality duties, for which there are examples that delivery of services for whichever groupgender or racehas improved.
Put that aside for one second. What I am concerned about is that if there is no evidence that you are aware of—clearly it is important for the Committee to see such evidence, if it exists—it is entirely possible that the very real problem of health inequalities, for example, which we have just been discussing, although there are many other examples, arises not because of a failure to consider it. In fact, given the terms of political debate, it has, quite rightly, over many years in this country, been something that has been considered very carefully and very deeply by a very large number of people.
It could be that what is involved is not a failure to consider, but the actions taken being the wrong ones, rather than people not being worried about the issue in the first place. In that case, this would be entirely the wrong policy approach to take. We should be focusing on actions rather consideration. We should be saying, “We know that there is a problem with health inequalities.” The problem is with something that the health authorities are doing, in spite of their best efforts and endeavours—something that they are getting wrong. Asking them to consider the matter again is not going to get us anywhere.
John Wadham: There may be all kinds of other things that can be done, and I am not suggesting that they should not also be taken forward, but in the context of the Bill the question for me is, Can the law help? That is what the Bill is about. It seems to me that the answer is, Yes, it can, because it will then ensure that people have to take the issue into account. Of course, there is a secondary issue about whether they are doing the right things and how effective they are, but that is not something a Bill can resolve, is it?
Sarah Spencer: I do not see this as either/or. Surely the Bill is simply a helpful measure to ensure that public bodies give consideration to this. It redresses a balance because the law says very clearly that you must consider gender, disability, race and so on. We also want them to consider socio-economic disadvantage, so it is simply saying you must consider that as well. If there are other thingsor, indeed, a range of specific measuresthat it ought to be doing, that may encourage them to think of those, but there is nothing to stop those being done separately.
John Wadham: But is not that precisely the problem? One of the virtues of these duties, whether they are the equality or the socio-economic duties, is the fact that if people take them seriously it is likely that they will involve a different, although not necessarily greater, allocation of resources. Therefore, it is likely that the consequence of that will be a need to concentrate peoples minds on this being something that they have to think about. It is really saying, Think about this. There is no doubt whatever that there will be public authorities that are not taking this properly into account. I would be surprised if there were no examples whatever.
John Wadham: I was running an issue of logic rather than an issue of evidence. Nevertheless, I would be surprised. As Sarah was saying earlier, this will also allow citizens, the voters, the people who are being provided with the service, or should be provided with the service, to ask the questionthere is a dutyhave you considered that duty? So, it is an issue not just about the law but about effectiveness and transparency.
As a person who lives in London, I would want to ask the London authorities to which this will apply, What are you doing about the people who live in Clapham and Brixton, where I live? Is the consequence of your asking this question going to make a difference? It is difficult for me to see why that is not a good thing to do.
If I may, following the questions so far, and then perhaps asking Mr. Sadler, who is somewhat beached at this discussion. The first issue is on the question of the socio-economic duties. Do you envisage that this will end up with a series of plans, which individual authorities will produce, or explanations as to where they are, rather along the lines of, say, disability awareness plans? Otherwise there will be no template to know what they are doing and whether it could even be sufficient.
I realise that there is no action in private law envisaged, but there could be a judicial review that in effect says, “You have not tried.” In a sense, your being a lawyer, Mr. Wadham, and my not being, you are not really seeking to get this into court, but you are at least trying to influence the action of authorities. How do you see the drivers of this working?
John Wadham: I am sure that in extreme cases people will use this to take judicial review proceedings, where public authorities have failed. In demonstrating whether a public authority has taken the action necessary, I would prefer transparency rather than a separate process. Perhaps amendments could be put together to ensure greater transparency.
When the business plan, the three-year strategy or whatever the public authority plans is integrated within the process, you can see the transparency because you can see the questions that they have asked themselves in the documents, strategies and business plans that they are already producing.
My anxiety is not to create a culture where there is a plethora of other ex-post facto justifications or tick boxes. The key question is, when planning services for the next year or three years, how do you take that into account? I would hope that the business plan or the annual report would set out how they have done so for the services or the policies that are crucial in this context. That is what I would hope, and people could measure that. Whether there are transparency measures, or whether in extremis they think that there is a complete failure to follow the duty, they are entitled to take judicial review proceedings, which I guess is likely to be rare.
Okay. We come quickly to two other points. The first came out of Mr. Wadham’s earlier remarks. Do you see the Equality and Human Rights Commission as the custodian in relation to developing inequalities? Is there a possibility of identifying separate protected characteristics that might need protection, especially in the Bill as drafted? If, for example, caste, or something dreadful such as being an MP in current circumstances, were to be regarded as grounds of discrimination—or harassment even—would you consider that the sort of machinery that would bring matters forward to the attention of Ministers?
John Wadham: The Equality and Human Rights Commission has statutory duty to monitor the law, which, in one sense, is why we are here today. Talking to my colleagues from other countriessomebody visited me from Australiathey have different lists of protected characteristics or grounds. We need to explore the extent to which those are necessary. The vast majority will be captured by the nine grounds set out here.
There are issues. For instance, one of the things that we are concerned about, which we are not in a position to make suggestions about, is the issue of genetics and discriminationin others words, pre-employment screening and so on. That seems to be an obvious issue that we need to debate for the future. The commission will look carefully at issues of that kind and make proposals when we have considered all the issues that such a proposal might raise.
Perhaps this is a lawyer’s point, so I will ask you before I pass it to Mr. Sadler—the question about principles. I know the Equality and Human Rights Commission wanted a principles clause, and I spoke up for that on Second Reading because I am familiar with the one in the mental capacity legislation. Is there a fear among Government lawyers that it will end up as a kind of double jeopardy? If they cannot get you under the exact terms of the Equality Bill, they will have a go at you because it is inconsistent with the principles. What is stopping a principles clause, and is it important to you that we should have one?
John Wadham: There are two parts to our proposals. The first is what we call an equality guarantee, and the second is a purpose clause. They are different. For various complicated reasons to do with particular provisions in the European convention on human rights, there is no constitutional equality guarantee. You may say that there is no constitution
John Wadham: There is none in this country. The Human Rights Act 1998 and the convention, principles and articles have taken a step towards giving us the fundamental rights and protection that the commission believes we should have, but the equality provision in them is not as strong as it should be.
I am sure that members of the Committee have read the Bill in detail, and are asking themselves the question, as we are, What does this mean? That is what the courts will be doing. Where there are provisions that need help in interpreting what they mean and what the effect is in this or that particular circumstance, it would be important, first, to have an equality guarantee. So, secondary legislation would take second place to the provisions and the principles in our proposed equality guarantee, as is the case with the provisions in the Human Rights Act.
Secondly, in the context of equality itself, it would be helpful if we had a purpose clause, so that when there is a debate in the courts, where the lawyers are considering what the Bill means, it will be clear that they are talking about the fact that this is a significant 21st century Bill that will make a difference to equality across the board. Then the courts and others will not have to look at bureaucratic and mechanistic approaches to the interpretation. That works in other countries, and I am very surprised and disappointed that my colleagues will not adopt it. Nevertheless, I hope that they will change their mind as the Bill goes through. It will make a significant difference, which is why we suggested it.
Mr. Sadler, if I may, do you have a word about the likely load on tribunals if the Bill is passed? Will it create an excessive work load? Perhaps to save time, I might ask another question. I am familiar with special educational needs legislation, and there is some disparity between what goes through the tribunal route and what goes through the courts. There is a similar and related issue in Scotland. Will you talk to your colleagues and try to ensure that wherever possible those matters hinge reasonably and there is equal access? Finally, there should be at least some opportunity for mediation in cases, without having to force the issue where that is not appropriate.
Kevin Sadler: Yes. On the second point, we have recently introduced judicial mediation in employment tribunals in England and Wales, and it is coming in Scotland as well. Together with existing arrangements with ACAS, it aims to help people to afford a tribunal hearing where it is sensible for them to do so.
Clearly, it is not your direct area, but I have a question about the awesome business of having to go to a county court. For example, there might be a discrimination issue in further education or in the universities. Do you talk to the Courts Service regarding its approach on that?
I want to ask about harassment. Perhaps we could start with John Wadham and ask whether you think that it is satisfactory for there to be no protection from harassment on the grounds of sexual orientation or religion for captive populations such as school children.
John Wadham: The commission has been thinking about that precise issue, and trying to resolve what some people might see as a contradiction between the need for robust debate and freedom of expression regarding some of those issues, and the issue of harassment. It seems to me that there might be some possibility of making a distinction regarding the extent to which goods, facilities and services harassment provisions could be extended to sexual orientation and religious belief in some areas and not in others. You mentioned a captive population, but the same could be true of other public sector providers, rather than the private sector, which might be in a different situation. The commission does not have a fixed position on that, but I hope that we can continue to discuss it and produce a policy during the Bills progress through this House and the next.
Obviously, I understand the need to preserve space for debate, but if someone is looking for a hotel they can shop around. If they are in school, they are in school and have no way of escaping harassment on the ground of sexual orientation, unless it is so severe that it becomes discrimination. I would be interested in Sarah’s view on that, as it seems peculiar to have the same lack of protection for schoolchildren—who are particularly vulnerable—and users of public services as for users of commercial services, who are adults in a grown-up world.
John Wadham: I would favour that kind of approach. We have evidence in the public domain that relates to bullying and children, and particularly homophobic bullying. Some issues apply directly to schools, which are, as you say, captive populations, and social services and the public sector more generally. That does not apply if someone can choose between Sainsburys and another provider, where they are not locked in in the way you are thinking about. That is a direction of travel that the commission needs to think through, and I hope that the Committee will discuss that matter during the passage of the Bill.
Sarah Spencer: I think this is definitely something that needs to be looked at. We are puzzled as to why it should be lawful to harass in schools on grounds of sexual orientation, religious belief and gender reassignment when it is not on grounds of race, disability and gender. Oddly enough, looking at the examples given in the notes on the Bill, it is suggested that a pupil could bring a case if he had suffered harassment on grounds of sexual orientation, which implies that the examples went in and perhaps such matters came out of the Bill at a later stage. We are puzzled and concerned about why the sexual orientation of someone should be exempted.
May I ask John Wadham about the definition of harassment? It has been argued that the current definition of harassment used historically from the origins of racial harassment is quite wide. There has been a disjunctive provision under clause 24 where the harassment either violates B’s dignity, which is hard to define unless you are B, or creates an
“intimidating, hostile, degrading, humiliating or an offensive” environment. “Offensive” is rather in the ear of the recipient. An environment to some people could easily be offensive. We could argue that humiliation or degradation is never acceptable, and that some people can easily be offended. If we intend to extend protection from harassment, but still seek to protect free speech and debate, is there a case for having a narrower definition of harassment for the more tricky areas that we have just been discussing, assuming that that is allowed within the terms of the directive?
John Wadham: Subject, as you say, to the terms of the directive, it is difficult to see how action that was intimidating, hostile, degrading or humiliating could be justified, but I accept that, in the context of being offensive, some will say that people are entitled to make offensive statements about sexual orientation or particular religions or beliefs. That is what article 10 of the European convention on human rights is about. So if we try to craft a provision to ensure that people are protected from things that are, in fact, damaging and, in the context, discriminatory because they have a discriminatory effect on how people feel that they can take advantage of the service or whatever, that is different from being offensive. Whether this Committee or the other proceedings on the Bill will ensure that there are two separate rules for harassment is a more complex matter.
John Wadham: You are absolutely right. One of the key virtues of the Bill, and why I hope that it will be supported not only by us and parliamentarians but by those outside the House, is its simplicity. I am not saying that that is necessarily a trump card, but the more complex the Bill becomes, the more difficult it will be for us or others to give guidance. I am not saying that it should not be more sophisticated, but we would be very happy to give our views in more detail as the measure continues.
Sarah Spencer: This is also something that we have looked at carefully. Clearly, it is important that the provision does not go too far. We are confident that, not only does it have to be compatible with the European convention on human rights, but because of the terms of clause 24(3) of the Bill in deciding whether the contact has that effect, there is an objective criterion. Not only is it the perception of the victim who feels that that has happened to them, but whether it is reasonable for the conduct to have that effect. We feel that that provides a sufficient qualification and that it will not be used too widely.
It is one factor. I am surprised that you say that it is sufficient. If you are a devout Muslim, you might be offended. It would be reasonable if you were particularly devout to be offended by something that someone else would not find offensive. Objectively, given your devoutness, it is reasonable that you would be offended, but that still does not necessarily solve the problem of certain people being particularly sensitive and someone saying something without knowing that a particular sensitivity is out there. That objective test could be argued not to be sufficient to protect free speech.
Sarah Spencer: In those circumstances, it would still have to be compatible in relation to the freedom of speech provisions under the European convention on human rights. Even if the courts took it only as reasonableness in terms of the victim, rather than the wider definition of reasonableness, you would still have that balance under the Human Rights Act.
John Wadham: The issue is not quite that, though, is it? One of the virtues of the Human Rights Act is precisely that it allows whoever is interpreting, whether it is a school, its lawyers or the courts, to ask that question. In other words, the provisions of article 10 need to be read into the matter, whether or not it is amended. I am not suggesting, therefore, that we should not do our best to make it compatible in the first place, but there is a long-stopthat is, as I said, the virtue of the Act. It protects the freedom of expression in that context, which will exist regardless. If you get the legislation right, and you do not have to rely on that, it is obviously better. That is something I am happy to talk about in more detail, or to make further submissions to get it right. It is important to consider the matter, and it is quite difficult to get it right.
I want to move on to disability discrimination. My interpretation of the concerns that have been sent to us so far is that there are two major issues about the Bill. The first is that it blurs, in some way, the current asymmetry between disability discrimination and other strands. The other is that the Bill represents some kind of regression from the current position. The Government position is that we are in favour of retaining asymmetry—that is important—and that there is no regression. I know that the commission has put in some evidence about the matter. Mr. Wadham, is there anything you can tell us? Perhaps Sarah also has something to say. What are the precise concerns that you have about regression?
John Wadham: I repeat that our overall impression of the Bill, including provisions relating to disability, is generally 99 per cent. right. The question that we are asking is about the other 1 per cent. We have the one chance now, at least in the foreseeable future, to get it right. Therefore, we want to ensure that there is a proper debate in Committee on some of the issues. In that context, because the words in the Bill are not words that we as lawyers are used to, we must look carefully about what their meanings are. To take the example that we were all surprised about, Malcolm v. Lewisham, the courts may sometimes take a different approach. It is worth it for all of us to spend some time to check whether the provisions in the Bill are exactly right. I do not apologise for not having all the answers, but I should say that if there was an equality guarantee or purpose clause, I understand that Malcolm would not have been decided in the way it was. I hope that we can debate that.
I also hope that those approaches will be successful. Inevitably, the approach taken to harmonise in the Bill is a different approach from the one we have taken so far. That is because of the development of the equality law in relation to race, gender, disability and others. It has been to craft measures that work as best as they can for the group in question, whereas, actually, it is absolutely right for the Bill to look across the board to say, as far as it is possible to do so, whether we can ensure that there is one provisionwhether that is in clause 13, regarding direct discriminationthat will cover all. My colleagues in the disability committee and other colleagues in the commission more generally want to spend more time looking at those proposals. We have raised a number of questions, but those questions are not such that we say the law should therefore definitely be changed. But we ask the Committee to debate the matter and for us to provide more detailed submissions as we go through them.
So is it the commission’s position that there is regression as currently drafted, or not? Or are you just not quite sure yet?
John Wadham: I am glad to hear that. It does not surprise me. But to take the more general question about whether on grounds of as opposed to because of is better or worse, I am afraid I am not sure I know the answer to that. I do not know whether I understand the reasons for that process. I think we need to think a bit more carefully about that, and that applies more specifically because of the asymmetry to the disability provisions.
Sarah, do you have anything to say about that?
Sarah Spencer: The main issue that is raised by the disability organisations and our membership is the difference between the public duty on disability and the current wording in the proposed new single equality dutyspecifically that it does not make provision for disabled people to be treated potentially more favourably. As I understand it, you do not intend that to be regression. There is a concern that, in practice, it is regression. But as our member, RADAR, is coming to give evidence to the Committee, I want to leave it to them because they can explain it much more clearly than I can.
On the question of the public sector duty, we are planning to include religion and belief as well as sexual orientation. I think there has been some fear expressed that the authorities are going to choose between the different strands which one they want to promote more than another, and some would be afraid that they would promote religion at the expense of sexual orientation. Others would be afraid that they promote sexual orientation, and religion would be at the bottom of the pile. Do you have concerns about any of that?
John Wadham: I understand why there are concerns. But I think it is important to concentrate on what the clause is about. Clause 143(1)(b), which I think is the issue, is about the advancement of equality of opportunity. It is
equality of opportunity between persons who share a relevant protected characteristic,
rather than the religion. So the issue of equality of opportunity is not to promote religions equally; it is to promote equality of opportunity between people who share that belief or non-belief.
As I said earlier, we will be able to help in relation to guidance, and in relation to the enforcement process. I hope that public authorities will ask themselves questions about whether they are advancing equality of opportunity between the persons who have those beliefs or non-beliefs, or shared characteristics in relation to sexual orientation, rather than saying that they have to promote one particular philosophical or religious belief as opposed to another.
Some of the criticisms suggest that there is a duty to promote one religion rather than another, and so I understand why people are concerned. But I am not concerned, particularly becauseI would say this, wouldnt I?we hope to help the provision by setting out sensible advice for public authorities and those that have to exercise this duty, so that they are clear about what they should and should not do. Drafts of that guidance will be produced and we hope that other people will be able make contributions.
If we get the law right, which I think the Government have in relation to this clause, we can help to make sure that it works in principle and helps to resolve some of the difficult issues that public authorities are currently having to wrestle with. Irrespective of this duty, public authorities need to try to serve all their customers as best they can. They have to resolve some of these things. I think that this is a sensible approach. In my view, it is difficult to see how we can justify a public sector equality duty that does not cover the key protected grounds and somehow says, It is all too difficult; lets not bother. Lets leave two out because then we do not have to resolve them.
Sarah Spencer: The balance of my answer would be the same. The majority of our member organisations attach a lot of importance to the public duty, including extending it to religion and belief, because of the importance of ensuring equality for people of different religions and beliefs. However, there are organisations in the membership that have a concern that it could be misconstrued, and that public bodies might misinterpret it to mean promoting equality between religions or religious groups. In practice, that could mean that religious groups are given a much greater voice and say in consultation and have more influence than they should. So the matter of concern is implementation. As John said, the statutory code of practice and the issued guidance making it absolutely clear what this is about will be important. It seems important to us to ensure, as John said, that all the protected grounds are covered, because there is clearly evidence of inequality for people in relation to their religion. However, some of our members are concerned about implementation and practice.
I want to make a wider point, too. Ms Spencer, you are part of an organisation to do with equality and diversity. There is a lot about equality in the Bill, but is there enough about diversity? I want a society in which you have a strong Muslim group, a strong this and a strong that, and in which we are all working together, rather than ending up with some kind of grey mass. Are you comfortable with that?
Sarah Spencer: I cannot see anything in the Bill that interferes with that. This particular provision is intended to ensure that, where there is evidence of discrimination and inequality associated with religion or belief, public bodies take that into account, addressing it in planning their services and employment. It is not about in any way creating a melting pot.
An example is adoption agencies—would it not be good to have an adoption agency that just deals with Muslims, or one that deals with Christians? As long as the local authority dealt with all of them equally, that would be one interpretation of equality, or are we saying that every adoption agency must be exactly the same?
Sarah Spencer: Do not forget that there are three limbs to the duty. First is non-discrimination, so your model there would provide for discrimination by all these different groups. The third limb is about promoting good relations, and your model does not seem to help there either, so I am not sure that that is what we are going to end up with.
John Wadham: The Equality and Human Rights Commission is in favour of diversity, not surprisingly. One of the issues for meI speak as someone who does not have religious beliefis that I do not think that religious organisations and peoples celebration of and freedom to express their religion is as well protected as it should be. That is despite article 9 of the European convention on human rights.
This is a step forward, because the issue is that although some religions are more significantly protected and involvedbigger religious organisations perhaps need less protectionsmaller organisations and smaller groups of religions need to be protected. We need to be able to celebrate peoples wish to believe in religion. That is not to say, therefore, that that allows people to discriminate, but it does mean that as a society we need to take that approach. That is why the provisions in clause 143 are about taking a step towards that approach. We can respect and celebrate each and every persons religious, non-religious or philosophical approach to life, rather than saying it is all grey.
However, I do not think that the next step is to say that, therefore, if people are providing what are the equivalent of public services they can discriminate against one group rather than another. There is an issue about having exceptions in the context of the working of the religion itself, whether that is about the priests and bishops or about something else, but that is not the same as the provision of a public service, which needs to be provided to everyone equally, as far as it is possible to do so.
Unfortunately, Dr. Evan Harris was not at our pre-meeting, so he was unaware of the question that I was going to pursue, but I would like to go back to where he left off in terms of schools and their captive audience. I would like to ask you about enforcement around this. Is one of the reasons why this has been exempted that young children who are being harassed on grounds of religion, belief, sexual orientation or gender variance might not find themselves with an able or willing advocate to guide them through a process that could involve action against an institution where the teachers and ancillary staff were responsible for, or complicit in, the harassment that the pupil was experiencing?
John Wadham: I would divide that into two questions. The first is to try to avoid and eliminate systemic issues that cannot always be resolved by individuals taking up such cases. That is why there would be a virtue in extending the law, so that people can devise their policies to ensure that the example you gave does not happen. I would be surprised if people did not already have policies in place relating to other legislation to ensure that that happens. Obviously, the Bill could help with that if that direction were taken.
Often, it is the systemic changes that make the most difference most quickly. People who take up individual cases can often motivate us all to try to make a difference in relation to more systemic changes. Under the circumstances that you have described, it would be difficult for an individual child to take up such a case, but that is not an argument for saying that they should not have that right. It is not correct to say that just because people do not take up their rights, those rights should be abolished or not given in the first place.
May I follow that up? I want to mention an interesting article that I saw, which is one of the reasons I got interested in this area. It was in The Independent on Sunday last July, I think. It mentioned that nearly half those children who are transgendered had attempted to commit suicide before their 18th birthday. That suggests that perhaps there is something systemically wrong with the way in which we allow our children to be treated, and bullied and harassed in our schools.
I would like to know whether there are any other data that the Committee could look at showing evidence within our schools regarding the types of bullying that children experience, and the impact and effect of that bullying on their lives. I go back to the matter of enforcement, as it is often class actions together—people unifying underneath a trade union movement, for instance, or an interest group—that can form the law, or allow it to be framed and understood by the wider general public and different institutions. Given that these are isolated children in difficult circumstances, who will take the class action for them and enable our society to understand the damage that such harassment and bullying can have on individual children’s lives?
John Wadham: The first question that is beyond the Bill is about how we identify and provide people in those circumstances with support. They will not identify themselves, so how do we provide them with support? The next question is about how we can construct systems, policies and procedures to ensure that the school, other people, staff and so on, support and protect such people from harassment.
On the specific issue about class action, the commission is there to enforce the provisionsI would say that wouldnt I? It can take proceedings in its own name to ensure that the law is respected, whether or not there are any victims. That is obviously something that Parliament has given us and, if there were sufficient examples of that and it was not being dealt with, we would take proceedings.
Sarah Spencer: May I add that Stonewall is giving evidence to you and that it was responsible recently for a rather impressive survey on bullying on the ground of sexual harassment in schools? It may be necessary to look at the definition of gender reassignment in the Bill because it does not appear to cover the young people whom you are talking about. It covers only people whom you are proposing for the process of having surgery. It is worth discussing that.
I want to probe three areas. I shall try to keep them focused so that I do not overrun my time. I come first to age discrimination, particularly in respect of clause 190. It is probably more directed to Help the Aged and Age Concern, although not necessarily. It seems that the Government have identified a number of good aspects of age discrimination, such as some of the business ventures in which Saga is involved. There are some other positive things. There are some policy initiatives such as bus passes and TV licences. What they want to do is to keep all the good things and get rid of, if you like, bad age discrimination. But it seems that they have not worked out a way of drafting that, which is why there is no clause in the Bill to define those things properly.
What the Government have come up with is something that I find unsatisfactory, which is a clause that gives Ministers lots of powers to pass regulations, seemingly on a case-by-case basis, when somebody comes up with a good piece of age discrimination that they want to allow. That does not seem to be a good way of doing it. That is my first point. Who wants to tackle that first?
Andrew Harrop: I represent Age Concern and Help the Aged. First, I should say that we very much welcome the Bill and the provisions on age discrimination outside the workplace. However, we share the concern about clause 190 and its proposed sweeping powers. The approach that has been taken effectively delays the drafting that we would ideally like to see happen. The Government have said that they have not made the policy decisions and they need to legislate. Our response is that the Bill is a long one, with carry-over. There is no reason why an amendment could not be tabled during its passage to put that on to the face of the Bill, rather than having such a sweeping power.
We know that there will be a consultation in the summer on age, and there is already a review being carried out by the Department of Health. It can report in October, ready for Third Reading, so that you might have some proper drafting to insert into the Bill. Alternatively, it is important that draft regulations are made available to parliamentarians so that you can properly scrutinise what the provision will actually do in practice. At the moment, you have no indication of what it means.
Our general approach on exemptions to age discrimination is much more relaxed than some observers, because the Bill also includes the power of objective justification. That means that any service provider can justify direct age discrimination if they can show it is a proportionate way of responding to an issue that they face. Clause 190 is belt and braces, and we think that in many respects it would be overkill to also have case-by-case exemptions, given the general exemption of objective justification.
In some instances, such as concessions, there is such public concern about whether they will carry on when the Bill comes in that we understand why the Government wish to be completely clear in legislation rather than have test cases. But we think that those instances should be limited.
Does anyone else have a burning desire to tackle that? No.
We talked a little about public duties in the previous evidence session, and my second question is about the disability equality duty. What was the evidence about the effect on the delivery of public services of the implementation of the disability equality duty? What lessons might the Committee take from that when we are thinking about how the general public equality duties might work? Perhaps you might want to take that up, Ms Gooding.
Caroline Gooding: First, may I say that RADAR very much welcomes the opportunity to give evidence on the Bill? RADAR has collected evidence directly from our memberswe have more than 500 groups around the country and we talk with them extensively. We had a large and successful public meeting this January on the public sector duty. Disabled people and disability groups are very attached to the disability equality duty, and feel that it has helped them in their day-to-day livesbut not always. There is always a problem of implementation and enforcementthat is probably the biggest problem. One of the strongest elements of the disability equality duty is in the specific duty, which the regulations introduce. That is a strong requirement that disabled people are involved in the way in which the equality duty is implemented and how public services are run. That has been tremendously important.
What has been extremely important for us is the very clear indication that, in relation to disability equality, the duty may require different treatment in order to deliver appropriate services. I formerly worked for the Disability Rights Commission and I was in charge of implementing this aspect of the law. When we consulted on our statutory code, it was amazing. Public authorities came to us and said, What are you talking about, more favourable treatment? That is not what the law requires. This is going above and beyond what is required. That very clear statement of what was required, on the face of the Act, made a huge difference. We are very concerned, as I think some of the previous speakers noted, that that statement is not adequately reproduced in the present Bill. In particular, there is not a sufficient emphasis of the distinctiveness of disability equality and the extent to which that different treatment is at the heart of disability equality in a way that it simply is not in relation to other grounds.
Ruth Scott: I would simply add that within the current drafting of the public sector duty, it has effectively shifted the requirement for more favourable treatment to become a discretionary decision on behalf of the duty holder, and that is the area that really concerns us. It must be very clear on the face of the Bill that that is something that public sector authorities must do where it is appropriate to delivering equal outcomes for disabled people, as opposed to can choose to do.
Do you agree that, in terms of the specific requirements that are laid down under the duties, the one about involving people in service delivery has been one of the very important things, because at the moment we do not have the detail about what those specific factors will be. Probably one of the things that we will discuss in Committee is the extent to which Ministers bring full draft proposals, which we can then consider to see what they are thinking of. Would you agree with that?
Ruth Scott: Yes, I would. As Caroline says, the importance of involvement of disabled people in developing disability equality schemes and developing the kind of activities that disabled people think are important and think will make a difference has been a fundamental aspect of the relative success of the disability equality duty to date. We would certainly like to see that replicated.
This is a question about the employment of people. At the moment employers are allowed to ask various questions at the employment stage, before they get to an offer decision. A number of people have suggested—I know the Work and Pensions Committee has—that the law should be changed so that pre-employment questions and questionnaires are not allowed, in the same way that they are not allowed in the US. You would still be able to make a decision at the offer stage if someone then disclosed a disability or a health condition that actually did impact on their ability to do the job, but you would not be able to ask about those facts during the employment process. Can I ask whether you support such a restriction on pre-employment questionnaires?
Ruth Scott: We are looking at drafting a proposal for an amendment that would specify the circumstances in which pre-employment disability-related questions would be reasonable. Obviously there are issues in relation to making reasonable adjustments for somebody at an interview in relation to equal opportunities monitoring and whether that information is kept confidential. However, we certainly share concerns that a kind of open-ended ability to ask disability-related questions pre-employment is of concern and should be restricted to quite specific arenas, where that is going to be helpful in terms of making sure that somebodys access needs, for example, are met.
Caroline Gooding: We think that, in relation to the employment of disabled people, that is probably the single biggest difference and improvement that could be made through the Equality Bill. It is not just a question of whether the employer discriminates. It is whether merely asking the question or being required to fill in a very complicated health form actually deters people from applying in the first place. There is a lot of survey evidence that that is the case. People with health histories, who expect discrimination, will simply put the application form in the bin. It was quite striking in the evidence taken by the Work and Pensions Committee that the CBI and the Employers Forum on Disability were in favour of this sort of approach.
I am concerned about the compulsory retirement bit and I wondered whether you could give any examples of a case where compulsory retirement has led to detriment and harm.
Andrew Harrop: We do not have an accurate estimate of the number of people being forced to retire, but we believe that it is in the thousands each year. An example that crossed my desk last week was that of a woman who was a cleaner for an NHS trust in the north-west. She had an exemplary work record but was forced to retire several months ago, and was told that that was only because of her age. She wrote to me because of the publicity surrounding our test case on this, which is judicially reviewing the existing age regulations, and said that her situation was having a massive impact on her pension.
Many people work in their 60s because they have inadequate savings and pensions and wish to improve their income for the rest of their life. That is why work for people around the age of 65 can be so importantbecause of its long-term impact. We support what you have said, and would like to see an amendment to schedule 9 that removes the default retirement age.
I am sure that we will try to help you with that. I have two or three small points. In terms of children’s rights, I am trying to find out where the desire of society to protect children starts and young people’s rights begin. Could there be examples of that? When we get to Committee stage, I will need to argue the point with examples.
Mike Lindsay: I am Mike Lindsay from the Childrens Rights Alliance for England. I am also here on behalf of the Young Equals campaign, which seeks to stop age discrimination. It includes a number of major organisations such as the British Youth Council, the Childrens Society, the National Childrens Bureau, the National Youth Agency, Save the Children and so on.
We want to see protection for children from age discrimination regarding the provision of goods, facilities, services and public functions as set out in clause 26. We believe that there is good evidence and have provided written evidence to the Committee in our Making the Case report that sets out examples of age discrimination experienced by children. We recognise that children require reasonable protection in the provision of goods, facilities and services. We do not argue that they should be treated the same as adults. Equality laws are not about treating everybody the same; they are about treating everyone as having equal worth. That is what our organisation seeks for children.
We are opposed to discrimination against children and young people on the grounds of age only in so far as such treatment cannot be objectively justified. That is the case that we would make in relation to protection. That issue is obviously receiving a lot of attention and consideration at the moment, and there is a lot of focus arising from the Lord Laming report and the baby Peter case. One point we would makeand one of the reasons why we would encourage the Government to think again about the issue of age discrimination as it impacts on childrenis that child protection services are disproportionately provided to children in this country on the grounds of age, as are a number of other childrens services. That is not only discriminatory, but is potentially harmful to a number of children, particularly older children.
That is helpful and I will certainly take a closer look at the arguments you make and the evidence you have given. My last question is to Caroline. Are you satisfied that the Bill fully addresses the chasm in the disability and equality law created by the Malcolm ruling?
Caroline Gooding: No, we have concerns about that. We are pleased to see that there is a specific clause in the Bill that attempts to capture the equivalent of disability-related discrimination. However, we have two concerns about the way it is drafted at the moment. One is the introduction of a clear knowledge requirement, so that the service provider has to know that the person has a disability before they can potentially be guilty of discrimination. Taking the case of large organisations, they will often have that knowledge in one part of thema local authority will know in one part that the individual is disabledbut another emanation may not. That makes it more difficult, in many circumstances, for individuals to seek protection under the law.
The other way in which we are not quite sure, and about which we want to have more discussions with officials, is how the Bill is drafted at the moment. Will the provisions work adequately to move away from the comparator approach that the House of Lords introduced? The decision by the House of Lords in the Malcolm ruling basically brought the disability-related discrimination provisions close to those for direct discrimination, requiring like-by-like comparators. We think there is a danger that, as it is presently worded, that may be the consequenceunintended, I am sureof the present clause. We would like to explore the wording in more detail.
Caroline Gooding: I can start with disability, which is different from the other strands in that way. At the moment there are no real restrictions in relation to positive discrimination under the Disability Discrimination Act 2005. The Act only protects disabled people from discrimination so, if you are non-disabled, you cannot take a case under it. A number of large employers have made very good use of that provision. Centrepoint, for example, a few years ago, advertised purely for disabled people to come and work at its call centres, and it had a separate stream of training and support for them to engage in. So, there is very generous provision for positive discrimination at the moment. In some circumstances it may be a legal requirement in relation to reasonable adjustments. We have some concerns that the Bills current drafting does not seem to signal adequately that that very broad approach to positive discrimination in relation to disability will continue. We do not think that it is clear enough on that absolutely crucial point. Again, that is an area that we want to have discussions on and probing about. We are confident that it is not an intention of the Government to restrict positive discrimination, but we do not think that how it is worded at the moment captures that.
Caroline Gooding: We think that the Bill should be more explicit about that and signal more clearly that disability is different. In relation to direct discrimination, clause 13(3)I have to say that it is one of the most difficult-to-understand clauses I have yet had to read in any equality provisions. We think that it needs to be a lot clearer.
Ruth Scott: The way in which the positive action clause is described at the moment includes disability, but the extent of the positive actions allowed is quite restrictive, because it applies to all strands. We would like to see that clarified, as to whether disability belongs in the positive action clause at all. Perhaps it would be preferable to delete it, to ensure the signal that positive discrimination across the board around disability is necessary to preserve the asymmetry of the legislation.
Andrew Harrop: When it comes to age positive action, we do not have enough experience of the 2006 regulations in force to say with any certainty how that is working in the employment sphere.
The aspect of the Bill that we welcome is the extension of positive action beyond the employer relationship. The particular issue that has come up over the past three years has been further education colleges, which have had legal advice that they cannot use positive action provisions. That has meant that they have removed reduced fees for over-65s to participate in IT classes and things like that, because they felt that they could not redress educational disadvantage under the age regulations. The Bill will resolve that anomaly.
I want to talk about carers and the provisions in the Bill about discrimination by association. Do you believe that that will provide carers with rights to request further provision such as flexible working? Do you think that that is an area into which the Bill should be moving?
Imelda Redmond: I am Imelda Redmond. I am from Carers UK. Carers UK really welcomes the Equality Bill, particularly its recognition of carers and discrimination by association. We hear a lot about carers experiencing discrimination at either pre-employment or in employment. This would help. I am not sure that it would help a great deal with extending flexible working because separate legislation deals with that, but it would raise a lot more awareness among employers that it is a group within their work force that can be discriminated against.
The sorts of cases that we get are of people who feel very sidelined in organisations and are overlooked for promotion, and who are not selected and told that it is because of their caring responsibilities if they had disclosed that at interview. The Bill would help with that, but not necessarily with increased flexibility.
Imelda Redmond: It is quite complicated because of the way in which the Bill is drafted. It is about the discrimination that carers experience because of their association with a disabled person, not about the discrimination they experience in their own right as a carer. When you are looking at, for example, how to improve the lives of carers, lots of carers will say that they feel that the health service will discriminate against them, particularly in terms of looking after their own health. But because the law comes through the association with the disabled person, it is only at the point at which the disabled person is discriminated against that it knocks on to them and has an impact.
Let us consider a carer who looks for more flexibility. A woman whom we know was having surgery. The hospital would not be flexible about the date of her surgery and the respite care home would not be flexible about when her husband went into respite careand the two did not meet That is one sort of problem. To be fair, it was not discriminatory. It was just treating her very badly. The whole issue of discrimination by association is quite difficult. It is a good step forward, but it is complex.
May I go back to age discrimination in the workplace? Andrew, when we were last in this position you were quite forceful, in that there were a huge number of opportunities to increase employment for people between the ages of 50 and 69. I would like to get a feel for whether you think that concentrating on removing barriers between that age is likely to improve outcomes for older people, rather than concentrating on adjusting or abandoning the compulsory retirement age.
Andrew Harrop: They are both important. The default retirement age is not just an issue for people over the age of 65; it has a chill effect on the labour market in the years leading up to the age of 65. People find it harder to move jobs, so employers could get stuck with someone. They find it harder to get training and new opportunities within the workplace because employers do not perceive that as a good investment. It is not necessarily appropriate to disentangle the default retirement age from the general suite of policies that the Government need for older workers, particularly those aged 55-plus.
Clearly, lots of other things are important, including decent Jobcentre Plus and skills offers for the over-55s out of work, who are currently facing significant barriers and massive age discrimination in the recruitment market, practised by both employers and recruitment agencies. I do not pretend that a default retirement age is the only answer, but it is a big part of the jigsaw.
If the default retirement age proves politically more sensitive, is it still possible to adjust and account for other age discrimination in the 50 to 69-year-old bracket that will still have a positive effect on outcomes for older people?
Andrew Harrop: It is still hugely welcome that we have age discrimination legislation in the workplace. It is only three years old, and although its impact has been felt, there is a lot more to do. As I just said, the recruitment market is still profoundly ageist. It is as important that we focus on raising awareness and the implementation of the law that we have extending into new areas, as the Bill will do.
Thank you. My last question is about the meaning of disability. We have seen that quite a debate takes place between the medical and social models, and we have a sort of hybrid in the Bill. Does it deal adequately with the differences between those and, if you do not think so, where would you like to see the boundary shifted?
Ruth Scott: We still have concerns. I represent the Disability Charities Consortium, which is an informal coalition of seven major disability organisations. We still have concerns that the long term requirement in the definition excludes significant numbers of disabled people from the protection that legislation provides. We, and particularly colleagues working with people with mental health conditions, talked about the issue of depression during the passage of the DDAs in 1995 and 2005. There was discussion about how we could overcome the 12-month requirement to prove that a condition or impairment was long standing. Depression is one of those conditions that tend to fluctuate, and people find it difficult to reach the requirement or threshold for proving that they qualify under the terms of the Bill. Disability Rights Commission research suggested that one in four disability discrimination cases failed as a result of people not meeting the definition, so such consideration is important.
On the other handwe would like to see the matter resolvedI do not think that it is possible to remove the long-standing requirement because it is reflected in the UN convention on the rights of persons with disabilities and other existing human rights legislation. However, clarifying the term long term so that it includes fluctuating conditions would introduce a specific recognition that that term would cover somebody whose impairment fluctuated and was not necessarily able to demonstrate that they met the terms of the Bill for a consecutive 12-month period. That would open a way of capturing and including that group of people who are particularly vulnerable to discrimination.
We would like to see the definition of substantial included in the Bill. We know that the intention of the definition of substantial is to be defined as more than minor or trivial, but we have concerns that the way that is interpreted by the courts can often be considered much more significant than more than minor or trivial. We would like to see that stated explicitly to ensure that there are no inconsistencies of interpretation, which could impact negatively on disabled peoples ability to claim their rights.
May I first ask Ruth to say a little more about the interaction of a positive action taken by anyone, and whether the disability equality duty is adequately reflected in the new duty? Dealing with that point first, I take it that it would be all right if public authorities used positive action to achieve an equality of outcome. The inference of your earlier evidence was that there was some concern that public authorities might think that they were entitled to opt out of positive action. Do you read it that nobody is suggesting that you must take positive action if that may not be the best way, but that you should take it if it produces the outcome?
Ruth Scott: There are two concerns. The first is that, in terms of the public sector equality duty, the duty to treat more favourably is now worded in a way that suggests that it is discretionary, as opposed to it being something that you should do, if that is the best way of achieving the outcome that you want. That is problematic because, essentially, it leaves the decision as to whether or not that is a justified course of action to the duty holder, as opposed to making a very clear statement that that is what they should provide. Secondly, the positive action clauseclause 152specifically talks about where positive action might be permitted. Our concern is that that muddies the water in relation to the asymmetry of disability discrimination legislation, which is required to allow us to treat disabled people differently or more favourably in order to achieve the appropriate outcome. People might look at clause 152 and think that the way in which they can treat disabled people is restricted in the same way as it is restricted to other grounds and characteristics. That will result in people becoming quite confused and assuming that there are restrictions on the level of positive discrimination and positive action that they are able to undertake.
That is helpful, because you just used the phrase “in order to achieve the appropriate outcome”. Presumably some kind of clarificatory amendment along those lines might be the way of taking the trick. I do not think that anyone doubts the intention behind the proposal, but we need to ensure that we do not impose restriction by accident.
Ruth Scott: We support the creation of a more streamlined and harmonised Bill that is simpler to understand, but our major concern is that, in harmonising, we should not lose the really important and unique distinctiveness of disability discrimination provision. The ability to treat people differently and more favourably is fundamental to being able to achieve the outcome that disabled people need.
May I turn to a more general issue about outcomes? Inevitably, and partly because of the long history of this and the fact that there are two different regimes in relation to gender discrimination, issues such as equal pay come up quite a lot. Some of us are equally concerned about disability discrimination—functional discrimination—regarding both pay levels and outcomes. We all appreciate that you cannot wish those away through an Act of Parliament, but is there anything else that we can do in the Bill to beef up that provision without imposing unreasonable burdens on employers who would have to make the reasonable adjustments to do it?
Ruth Scott: I have noted that there is an amendment on extending the duty to report on equal pay for disabled people, which is something that we are interested in. However, our major concernit is disappointing for us that it is a major concernis to ensure that there is no regression on the rights that disabled people currently enjoy under the DDA. The coalitions focus is to ensure that those rights are reflected as clearly and uncontroversially as possible in the new Bill to ensure that judgments such as Malcolm cannot occur again. However, I agree that there is a need to look at the issue of unequal pay and unequal promotionthe glass ceiling.
Caroline Gooding: There are elements within the present public sector duty requirements of reporting in relation to employment that might, if adequately enforced, give that sort of transparency about the proportion of disabled people at the higher levels of an organisation as opposed to at the lower end, for example. We would not want to see those requirements lost.
So there is no question of their being diluted—at least in the terms of the Bill as drafted—but they might not be as effective as you would have liked in terms of achieving an outcome in the public sector, because the position there seems to be as bad as it is in the private sector.
Caroline Gooding: There might be a chance that those requirements will be diluted because they are in the specific duty regulations. We are waiting for the consultation on those regulations, so we will need to have a look at that to see whether there is a danger that we may go backwards in relation to transparency on the employment of disabled people.
Going back to young people, would your argument be that we should just do away with the 18 limit altogether? If we could push it down to 16, would that be a step in the right direction?
Mike Lindsay: That is not the case that we are arguing. We argue that children and young people should be included in the protections that are provided within legislation. We were talking before about positive discrimination. Perhaps children are the greatest example in this country of positive discrimination, particularly in relation to going to school. We have to discriminate in their favour to provide them with such services as free education. Also, we are not arguing against the use of classifications, such as in relation to cinema and alcohol and all the other things that are very specifically not in childrens interests.
Part of the reason why we are making the case, and why we would encourage you to look again at the aspects and implications for children, particularly around how the public sector equality duty applies to children in schools and childrens homes, is that there is a strong argument for saying that it should apply to children in schools. We would like to encourage children as citizens in their own right, and as aspiring adult citizens, to have equal regard for each other in terms of worth and value.
In relation to childrens homes, there is something slightly incompatible between the provisions in the Bill and those only recently set out in the Children and Young Persons Act 2008. The Government are trying to encourage greater stability in the placements for children in the care system and trying to encourage more placements with siblings in care, but that could be undermined if childrens homes are encouraged to think that it is okay to make decisions based on age discrimination. For arguments sake, it is possible, perversely, for any childrens home in this country to decide that a 14-year-old is apparently too old to continue to live in a childrens home, which means that they have to move on.
We will encourage you to look at some of those incompatibilities. There are incompatibilities with the provisions of the Childcare Act 2006, which makes a stronger commitment in relation to children in the determination of these issues. That is broadly the case that we are trying to make. We do not believe that there is a case for arguing that a burden is attached to this. The vast majority of schools and childrens homes in this country already positively encourage the fostering of good relations. Again, this is most explicitly demonstrated by childrens homes. Fostering good relations in childrens homes has been the bedrock on which all guidance issued by Government on permissible forms of control and good behaviour management has been based for decades or generations.
I take the point you are making. However, I wonder if we should not move on the 16 to 18-year-old age group, which most people would consider to be pretty much an adult age group. Do you feel it has to be all or nothing?
Mike Lindsay: There are good examples in relation to 16 to 18-year-olds. Are they children or adults in relation to child protection legislation, their entitlement to receive services under mental health provision and their entitlement to independent accommodation, particularly if they are care leavers or without goods and provisions? There a number of young people in this country who, because of age alone, fall between too many gaps in services that they should be entitled to. Our argument is that most of those services should not be dependent on age-related guidelines that are often arbitrarily contrived.
We have a perverse situation that for a childrens home to be registered in this country, it has to agree the conditions under which it will be registered. That includes age, which could be limited to between 10 and 14. By definition, that would split up siblings and force children and young people to leave those facilities for no better reason than age.
Our argument is that childrens needs should be judged, based and assessed purely on merit. Generally, whether they need mental health services, childrens social care services and a number of other services should be based on an assessment of their needs. The merits of childrens needs should not be based on the rather crude criterion of age.
Thank you. My other point is more on disability. The word “reasonable” is used a lot. Clause 19 speaks of making “reasonable adjustments”. I wonder if that word is too weak in practice. Do you think that it is the ideal word or the best we can come up with? A lot of organisations have been at the slower end of reasonable. It is a vague word in my mind.
Caroline Gooding: I have looked at a lot of evidence relating to a large number of cases that have been brought under the Disability Discrimination Act and to people who have not brought cases because they have managed to resolve things amicably. The word reasonable is not usually the stumbling block. As Ruth said in relation to employment, the stumbling block has been the fixation on the Are you disabled or not? issue, rather than whether it is reasonable. The guidance that has been put out over the years and good sense in many cases have been adequate to deal with reasonableness.
The other stumbling block which means that the law is not implemented, particularly in terms of goods and services, is enforcement. There is a very weak and difficult enforcement regime. The Employers Forum on Disability gave evidence to the Work and Pensions Committee. There is a risk that the part of the Disability Discrimination Act relating to services will be discredited because there simply is no real sanction at the moment.
There is no risk of a service provider being taken to court, apart from in very unusual cases in which the Equality and Human Rights Commission gets involved. It has been involved in some cases, which is very welcome, but it is simply not possible for it to support all the people who need to be supported. The barriers to justice in that regard are too great at the moment. That is much more of a stumbling block than the word reasonable, which has worked relatively well.
Ruth Scott: I absolutely concur with Caroline on the difficulty of enforcing access to goods, facilities and services. The word reasonable seems to provide the necessary flexibility and understandability. People can judge what is reasonable and what is not.
We are concerned that under the current drafting, clause 19 on the duty to make adjustments has changed the emphasis from removing barriers to avoiding barriers. We are concerned that that represents regression in relation to the level of protection that we have with the Disability Discrimination Act, so that duty holders can now almost work their way around a physical or service barrier, as opposed to first and foremost being required to remove that barrier, and then taking some alternative steps if that is not reasonable. We would like to see that issue addressed and the strength of the DDA duty to remove barriers reinstated.
I want to probe the issue of positive action and positive discrimination that Ruth and Caroline have both mentioned and Tim has already explored a bit. One plank of what you are concerned about is that positive action, being new, might look like a weaker version of positive discrimination to the casual observer who has not yet had the benefit of the commission’s guidance. But as I understand it, that is not your main point and I would not think it a good idea to remove disabled people from the positive action provisions because I can imagine that they could be useful.
Is your real point that that adds an extra complexity to the lack of clarity that you perceive in the Bill about the availability of positive discrimination, as we know it, in the old Act? If that is your point—that it is less to do with the problem of the new positive action provisions, and more to do with that might just complicate what you think is not clear enough already—how do you think that it could be clarified so that everybody is satisfied that positive discrimination is just as available as it always was? As you rightly perceive, that is the intention.
Ruth Scott: Our concern is in relation to the wording of clause 13. That is where we feel that the clarity around the asymmetric provision for disabled people is not expressed clearly enough. As Caroline said, that clause is quite confusing and we would like to see it reshaped to make it much more explicit, so that there is a difference of approach in relation to disabled people and that that is backed up in clause 14, which is specific to disability.
Our concern with clause 152 is almost that positive action is unnecessary in relation to disabilityif there is clarification and positive discrimination is permitted in relation to disability in any context where that is appropriate. Further, given the lack of clarity in clauses 13 and 14 at the moment, clause 152 may lead to people interpreting the restrictive way in which positive action is allowed to apply to disability. That will therefore lead to people making judgments as to what it is that they can and cannot do in relation to positive action, whereas the asymmetric nature of protection for disabled people ought to allow them to do anything that is justified in terms of achieving the appropriate outcome for that individual.
As it does, it is just that there has got to be an additional, or separate, provision for positive discrimination. Are you saying that we are not declaring that second limb, or are you saying that your preference would be to withdraw the disability strand from the positive action provisions, which looks like not a good thing to do? Would you not still want some additional clarity in the definitions?
Caroline Gooding: We are broadly in favour of withdrawing from clause 152 because we think that it suggests that the same restrictions on positive action apply across the strands. The clarity that you would need in relation to positive action on disability is purely in relation to allowing certain groups of disabled people to be advantaged over other groups of disabled people, where that is appropriate. There is no requirement to have an explicit clause that allows disabled people to be more favourably treated than non-disabled people, because that is the way in which the whole Act is craftedit is asymmetrical. It is misleading to have a separate clause alongside the other strands that says that it is okay to treat disabled people more favourably, and it will send the wrong message to people.
The positive action provisions will apply in very specific situations, will they not? Then you have the wider position that we are all used to under the DDA.
Ruth Scott: The most important point is that we need clarity in clauses 13 and 14 so that the asymmetric nature of the disability protection is unchanged from the DDAthat is the main point. Caroline made a good point about positive action, but it might be important to clarify where it is appropriate to take positive action in relation to one group of disabled people rather than another. For example, if one group is particularly under-represented, you might choose to appoint somebody with a mental health condition over somebody with a physical impairment. But Carolines point about general positive action is that this is so restrictive that it sends the message, Is this restricted or isnt it? in relation to disabled people. That is what we are concerned aboutthat there will be confusion in interpretation.
So reminded, I want to go back briefly to carers. I was taken by the comment about something that was not necessarily discriminatory, but which was jolly bad treatment of carers—I think that the example was health inequalities and problems with respite care. Obviously, this is not a discrimination Bill—it is an equalities Bill—but is there anything else that you would like to see? Are we missing a trick?
Imelda Redmond: The Bill as it stands does not cover indirect discrimination against carers, and we would like it to. Carers can find it difficult to look after their own health where public services do not provide them with equal access because of their caring responsibilities. Health is the primary issue, but services may also not be provided appropriately for people with disabilities so that the carer can get on with their own life. An example that came to us quite recently was of a young person with severe disabilities who had been refused the surgery that they neededthere is a whole disability discrimination issue there. As her health deteriorated, her mother ended up giving up work, and no consideration was given to the impact that that would have on her and her family. We see a lot of carers, particularly in the health service, who are unable to protect their own health, and that has a knock-on effect on the person they are looking after.
Mike Lindsay: May I make a quick point in relation to that question, and that is to recognise that a significant number of carers in this country are actually children themselves? It is not clear whether enough recognition is given to whether their needs are being met. We know of a number of cases where that has been brought to the attention of local authority services. They have assessed the needs of the adult parent, but not necessarily the needs of the child specifically as a child in need. There are examples where childrens needs should be incorporated and taken fully into account in these provisions.