Last Session of Equality Bill

The 19th and 20th sitting of the Equality Bill. Hurrah – the last chapter – at least of the Bill Committee.

The big issue of the morning session was my amendment – well new clause – which would insert an Equality Guarantee into the Bill. The problem with the Bill is that it is very prescriptive. The protection from discrimination is delivered to strands – otherwise known as ‘protected characteristics’. As have explained before – these are things like race, gender, sex, sexual orientation and so on. What the Bill doesn’t do is guarantee equality and protection from discrimination if you fall outside of the very precise prescriptions within the Bill. Hence the Equality and Human Rights Commission lobbied for the inclusion of an over-arching Equality Guarantee.

Both Labour and Tories just picked it to pieces in terms of the minutiae of relatively small technical matters or drafting – clever dick stuff – but ignoring the key point. And as I said in Committee – the Bill lacks any real vision for equality on the wider scale. It brings together existing legislation in one place and makes some progress in terms of equality but not much. An Equality Guarantee is very similar to the Human Rights Act in that it gives overarching protection against inalienable rights. But no – how dare I suggest that the legislation might not be perfect and there be any situation or unintended consequence that would allow a Law Lord ten years down the track to make a judicial decision that would undo all the good that was intended in this Bill.

But this is exactly what happened to the Disability Discrimination Act. I am referring to what is called the ‘Malcolm’ case. Without going into long explanations – the Disability Discrimination Act came into being to protect people with disabilities from discrimination. In the Malcolm case the Law Lords made a decision that totally undermined and screwed up the entire intention of that Act. It has taken three years to sort out – and thousands of people with disabilities were put at risk by the intention of the Bill not being clear. Hence an overarching Equality Guarantee would put it beyond doubt that we all have a right to equality before the law and equality in our lives and protection from discrimination. However, the Solicitor General was absolutely confident that we needn’t worry and that such a thing was so unlikely to happen that it would be ridiculous to put such a Guarantee into this Bill. And so on. And so on……………………….

Tim Boswell (Tory) tabled a similar thing – although not so broad and over-arching – but something called a ‘purpose clause’ which basically is a statement of the intention behind the Bill so that a judge, if something one day was unclear, could look at this ‘purpose clause’ and understand the intention of the Bill. Vera Baird was more polite to Tim than myself – but equally dismissed it.

In the afternoon and very last session of the Committee there was an amendment about not inquiring of applicants for jobs as to whether they had a disability. Not unlike my anonymous job applications in theory. Disability organisations have lobbied members of the committee because their experience is that employers do discriminate against applicants with a disability – whether or not that disability would detract from their ability to do the job.

Anyway – that was it. The tradition then is that all the leads of the parties thank everyone, clerks, officials, the committee, the other leads etc etc for a wonderful debate and so on. Vera Baird summed up on the key issues that the Government has promised to consider (change) and come back with hopefully their own amendments at Report Stage which will be in the autumn session.

I quote:

Solicitor-General: However, I have agreed to consider five matters: whether to include various fire and rescue bodies in the socio-economic duty, as proposed by the hon. Member for Hornsey and Wood Green; the clarification, if necessary, of the asymmetric nature of disability protection in clause 13(3); the issue around the case of Malcolm and whether we need to make the protection in clause 14 clearer; the case for representative actions; and, very recently, whether to limit the use of pre-employment disability questionnaires. That is a little survey of the work that I still have to do before we gather again on Report. I will seriously consider all those proposals.

I reminded the Minster of the DWP work on anonymous job applications too! So – quite a lot of the arguments we have had in Committee have born fruit – but not nearly enough. So there will be lots to bring back at Report Stage. The issues that the Government needs to change their mind on are things like: the gender pay gap; the issue of discrimination in the caste system; harassment in terms of homophobic bullying not being protected in the clashes with religious freedoms; gender reassignment needing to become gender identity as reassignment has been used in previous terms to indicate sex change – and this needs to be much broader; anonymous job applications and lots lots more. Some exciting new issues to come in the autumn too – as Evan and I are bringing forward the issue of Royal Accession to the Throne – where we feel and have both campaigned on – the discrimination both in the bar against Catholic accession and the tradition of females dropping back in succession in favour of younger born males.
Way to go……………………

What’s in a name?

Here’s my latest column from the Ham & High:

I had two interns a while back whose surnames were Hussein and Patel. They were bright as buttons and went on to get very good jobs – one at the Ministry of Defence and the other in public relations.

Prior to coming to my office they told me that they had applied for hundreds of jobs but not even got through to the interview stage. Now much as I’d like to hope that my interns get valuable experience – after all, that is the point – it was a striking change that once they’d got “worked for an MP” to put on their CV they suddenly got much more interest from would-be employers.

So that got met thinking that there might be a discard of applications because of an unconscious bias – a bias that is only beaten back when there’s a strong contrary hook in the CV for people to latch on to. If that’s the case, then the answer is simply – move to anonymous job applications where the application is processed, at least until interview stage, using a reference number with the name withheld.

Without a name the ethnicity, gender and age of the applicant would be hidden – and the application would be judged on its merit in terms of qualifications and experience. Of course, when it comes to interview, all would be revealed. But once an applicant is in the room – they’ve got a chance to show what they’re made of.

We give children numbers to write on their exam papers to ensure that there is absolutely no bias in marking. This is really the same kind of thing. And it’s also what some employers do at the moment.

I floated my thesis in the second reading of the Equality Bill and it caused quite a hoo ha in the employment world. The Chartered Institute of Personnel and Development supported the idea – although did not believe it should be mandatory. Some in the human resource industry thought it was a stupid idea – though I was a bit surprised that some said it couldn’t be done, given some firms are doing this already!

Undeterred, at the Committee stage of the Bill I tabled an amendment that would see this brought into law. The Solicitor General, Vera Baird (Labour Minister) – after sneering for a bit as is apparently mandatory when a good idea comes from an opposition MP – admitted that the Department of Work and Pensions was doing some survey work to find out if my theory was correct. She said she was sorry to tantalise the committee as the work would not be finished until the summer – but initial findings showed ‘significant discrimination’.

I was really excited – because if there is a big problem here – then the use of anonymous CVs is a really simple, effective (and low cost!) way of fixing it. And so many benefits flow from removing discrimination in the job market in terms of opening up opportunities and spreading wealth – brining pluses such as greater social cohesion and economic efficiency which we all benefit from.

Then the Mail on Sunday gets the wrong end of the stick and blasts the Government for carrying out this research. Well excuse me – but research to see if a change in the law is required sounds pretty sensible to me – especially on an issue as important as discrimination in employment practices. The Mail quoted various grumpy employers not liking the idea that research is being done to check whether discrimination is taking place – but if that’s the case they shouldn’t have anything to fear from the research. And a smart employer would also know the depth of scientific research that already exists into the myriad of subtle ways that biases and discrimination can creep into human decision-making processes – as seen in bestselling books such as Malcolm Gladwell’s Blink.

Blimey – this is a proposal that actually won’t cost business any money and might drastically improve the situation for applicants for jobs – bringing fairness and equality – and still they moan.

So what’s in a name? Quite a lot!

The 17th and 18th sitting of the Equality Bill Committee

Coming towards the end of the line by line scrutiny of the Bill. Blogging the little bit of it that I have has been quite a struggle as there is so much to cover – and I simply can’t cover all of it. For those who are interested – the entire transcript of all the evidence sessions and committee sessions is on Hansard – so for those who want word by word of each moment – that’s the place for you.

The key issues in the 17th and 18th sessions were as follows.

There was an extraordinary response from Vera Baird, Solicitor General, to my Lib Dem colleague, Evan Harris’ amendment. This was all to do with the schools being exempted from protection afforded by this Bill. The problem is that this leaves in place, without change, the old laws that are in the School Standards and Framework Act. Here is a little bit of the discussion just at the beginning of this particular argument – to set the scene.

Dr. Harris: In the Bill we are dealing with the rights of people to not be discriminated against on one of the protected grounds. Section 60 of the School Standards and Framework Act arguably gives state schools the right to dismiss someone on the basis of their belief, their attendance at worship or their conduct. It is alleged by faith schools that conduct that is not consistent with those tenets, including private conduct related to sexual orientation, comes within sections 58 to 60. The Solicitor-General will know that when hon. Members debated the 2003 employment regulations, which are reproduced in the Bill, there was a long debate about the paragraph in those regulations that said that, notwithstanding the regulations, sections 58 to 60 of the Schools Standards and Framework Act 1998 will apply. Therefore, this is very much a live issue; that is what the provisions say.

So you can see – hopefully – where the argument lies. We Lib Dems think that this exemption should be got rid of as it allows discrimination to continue under that older Act. And there is an ongoing argument through many of the discussions about the protection for ‘religion and belief’ where there is a fundamental disagreement as ‘the tenets and beliefs’ of some religions are discriminatory – specifically that homosexuality is wrong. Blimey – we’ve just had a religious Christian leader saying that homosexuals need to repent and change on the news – which I think illustrates the point.

The Solicitor General’s response was thus:

The Solicitor-General: The UK negotiated the inclusion of article 4(2) of the framework directive with the intention of preserving the provisions in the School Standards and Framework Act, and we are satisfied that they are compliant. That provides for future legislation to allow differential treatment on religious grounds, where that reflects national practices and where there is a genuine, legitimate and justified occupational requirement. Nothing in the Act can be used to discriminate against someone because of their sexual orientation, which would be unlawful in employment law.

Let me add — this is all that I intend to add — that we do not intend to override substantive education legislation in the Bill. There is no problem whatever, and we will not mend something that is not broken.

This was all she would say in response to eight key questions that exposed the very real harm that could prevail in schools if the Government’s exemption went ahead.

It is fine to disagree – the Government almost always does – but to be so contemptuous and not give a proper response I think is disgraceful and a good example of how the Government disdains real argument. When it can’t answer – it falls back on simply being rude!

Then there was then a bit of a row about scouts. The proposition was that you shouldn’t have to swear a religious oath to join – and examples are to be forthcoming from Evan Harris (which he will send to the committee) of volunteers (adult) who have been told just to take the oath but cross their fingers – as they are desperate for volunteers to run the scouts but many who would wish to are not of the right religion or are not religious. Government awaits the evidence!

An interesting discussion then ensued, based on two of Evan’s amendments. These were about discrimination in sport – most noticeably between men and women. It happens in a number of ways. For example – our women’s cricket team won the world cup – and got barely any coverage compared to what would have happened had it been the men’s team. So – it’s about the different attitude of the broadcasters. And to those who say that the broadcasters broadcast what people want to watch – the discrimination starts in the amount of women’s events compared to men’s. If you take one sport (like Olympic cycling) there are more men’s races than women’s. There is no reason for this and the consequence is that women’s cycling is secondary or perceived to be secondary to men’s cycling. There is no reason – physical or otherwise – for this discrepancy and the media broadcast what is there – so if there are less women’s events there will be less coverage.

15th and 16th sitting of the Equality Bill Committee

On we went to the 15th and 16th sitting of the Equality Bill Committee during the week. The first part of the day was spent on the Public Sector Equality Duty.

Tim Boswell (Tory) had tabled an amendment that sought to add protection of an individual’s human rights to the public sector equality duty. The argument he made (rightly in my view – and I have a new clause along the same lines next Tuesday) was that the Bill should not only be about stopping discrimination on specific grounds – the ‘protected characteristics’ such as race, sex, disability, religions, sexual orientation and so on. It should also be about more general promotion of human rights – which, apart from the practical implications would also be an important message of principle about human rights being for everyone and not simply a collection of specific niches. In response, the Solicitor General did not really address the point, just saying that she did not think this amendment would add anything to the protection already in the Bill.

The debate moved onto the frontbench Tories arguing (or probing) the Government as to how they wanted the public sector equality duty to apply to private companies who are contracted to deliver public services. The duty certainly extends to their delivery of the public service for which they are contracted – but not it would seem to their own organisation.

The Minister argued against this, saying it would put companies in an uncompetitive position. If Group 4, for example, in its public function of running prisons was also thereby required to follow the public sector equality duty in its other commercial ventures – say delivering cash to banks – then other companies that did not have this duty could have a competitive advantage.

There was also a very long section around religious organisations who also operate commercial functions. An example would be Catholic adoption agencies – which under the duty would be bound to facilitate adoption to a gay couple. Given that they feel this transgresses their ethos, the argument was that they should not have to do it.

The Solicitor General answered that in the provision of adoption services such an agency should be able to offer every option for a child – including gay adoption if necessary. I don’t think this is something that there will ever be agreement on – but the law moves to make a public function non-discriminatory.

In the afternoon, I had two amendments which questions why the Government exempted schools and children’s homes from the protection from age discrimination. My arguments were around the inequity of children in children’s homes being arbitrarily moved because that children’s home was registered for, say, 10 – 14 year olds – which can be bad enough in itself, but even worse if it means they are separated from siblings with whom they are meant to be kept. Under 18s have, in my view, the same need for protection from discrimination as adults – if not more. How young people and children are treated shapes them for the rest of their lives. If treated with respect – they will grow up respectful. It was a very long argument – but once again – the Government maintained it was just fine if children had to put up with being shunted around to suit the system rather than their needs.

The BBC then came into the debate in the form of a probing amendment that sought to find out whether they would be subject to the public sector equality duty in their programming. The Minister assured the Committee that the duty applied only to that which was outside of the content of their programming. Phew!

Equality Bill: equal pay

There were four sessions of the Equality Bill Committee last week, so for this post I’ve picked out the arguments around unequal pay between men and women. So to the normal anonymous commentators who take exception whenever I blog about discrimination about women – I expect to hear from you shortly!

First up – hypothetical comparators. When you bring a case for discrimination in pay, currently the woman has to point to a similar job being done by a man – i.e. there has to be a real comparator to prove discrimination. This is quite different to any other case you can bring on discrimination. If you are black and believe you have been discriminated against – you don’t need a comparator at all – for example.

The reason this continually comes up as an issue – and as a barrier to women being able to bring claims – is that there are many jobs that are almost solely done by women – dinner ladies, lots of carer jobs, seamstresses etc. Traditionally these ‘women’s’ jobs have been paid poorly as women’s work has always borne the stigma of not being as important as men’s work and consequently is paid at a lower rate.

I am not sure why the Government continues to resist the introduction of the ability to use a hypothetical comparator. However, resist the Solicitor General did. My arguments weaved around the fact that there often isn’t ‘evidence’ because men don’t do the comparator work – and so insisting on a traditional comparator locks out whole areas of possible discrimination from action. This argument has been put many, many times by others before. It is used elsewhere quite commonly to resolve the issue around women’s work not having a comparator. And it is clearly outrageous that it is only in discrimination in women’s pay that a real comparator is required. So – shame on the Government on this one!

Another big issue was Clause 73 – gender pay gap information. This is the one you may have heard about – and is the Government’s proposal that companies of over 250 people will have to publish the pay patterns for their male and female employees – so that employees can see for themselves if they are being discriminated against and external bodies like the Equality and Human Rights Commission can judge if there is systemic discrimination.

Problem from my point of view is this clause only suggests that the information be published and leaves it as voluntary until at least the year 2013. As the Equal Pay Act was passed 39 years ago and women are still paid 17% less then men for equal work – we are sick of waiting.

So instead of this weak measure, the Lib Dems think there should be compulsory pay audits – and that if companies (and we think over 100 employees would be a much better number to encompass a reasonable proportion of the population 80% of whom work in the private sector) had to publish this information – women would be able to bring claims as they could see if they were unfairly paid. So could men for that matter.

So our argument is about letting employers off the hook for another four years. And as I pointed out to the Minister – we don’t know what hue the next government will be and if (heaven forefend) it is a Tory government – then hell would freeze over before they introduced the compulsory element.

I used many a persuasive argument. Some of the Labour backbenchers in committee agreed with me. But the Minster was determined to keep it voluntary – referring continually to the CBI, the Equality Commission and the Government agreeing on ‘metrics’ by which progress could be measured. So – I might as well have been whistling Dixie as the Minster was set in stone and clung to somehow this all being alright in the future.

Then there was the issue of allowing ‘representative action’. Currently, if a woman believes she has been discriminated against in terms of pay she can take the claim to an employment tribunal. Firstly – you have to be quite brave and assertive to take a claim forward. Secondly, the resources for tribunals etc are so inadequate that there is currently a backlog of women waiting – and waiting – and waiting. Thousands and thousands of women are held in this backlog – and women have actually died waiting for justice. There is nothing in the Bill that increases resources – and that would not be the whole answer anyway.

The proposed amendment would allow ‘representative action’. This would mean that if there were other women who were discriminated against in the same way – they could be represented as a group by either the trade unions or indeed the Equality Commission. But again the Government resisted this most obvious of moves forward – backed as they proudly claimed by the CBI.

Well – we were backed by all the women’s’ organisations you can imagine – who are just sick of warm words from the Government but no real action. For we don’t just need laws about equal pay – there also needs to be the ability to bring cases.

The Government, I think, got the message – as the Solicitor General said they were going to consult (again) and whilst she attacked me stridently over the suggestion during the debate – at the end she conceded that they would probably be able to bring something along these lines back in the autumn when the legislation passes to the Lords for its scrutiny there.

So – we fight on – and will bring some of these key issues back at the Report Stage of the Bill in the Commons chamber. The Government is clearly in thrall to the CBI and refuses to take the steps that would deliver equal pay. How can a Labour government fail so monumentally – even if only as their legacy – to deliver this most important of steps towards equal pay for women?

Anonymous job applicatons: who's afraid of a bit of evidence?

So – the Mail on Sunday is sounding off about some of the work the Government is undertaking to prove or disprove the theory that discrimination exists in the form of applicants for jobs getting eliminated because they have names that give away their ethnicity, gender or age.

Apparently the Department of Work and Pensions sent out two thousand applications using false names to judge the response. The Mail characterises it as to see ‘if they are racist’. And how dare they waste businesses’ time. And the CBI joins in. How dare they etc.

Well – I say well done Government. I am glad they are carrying on testing my idea about anonymous job applications because if my theory is proved that by removing names and replacing them with a number on applications we end up with people not being discarded from the first sift of applications because their name shows they are black, female or old – that will be a very, very good thing. And it won’t cost business anything virtually.

And if the CBI are confident that I’m wrong? Well, they shouldn’t be worried about evidence being gathered to find out!

Proof is in the pocket: the Equality Bill

Earlier this week I did a blog post for e-Politix.com:

Proof is in the pocket

Perhaps you have to be a solicitor to understand why it is necessary to rewrite the law to say the same thing. Working on the Equality Bill has been like a labyrinthine legislative version of spot-the-difference. On the one hand a myriad of regulations and legislation spanning 40 years, and on the other a new single tome – the Equality Bill.

To be fair, there are a few obvious differences – such as ending disparity of protections between different types of discrimination, most notably age. However, it will come as no surprise that, as a party with liberty and equality at the heart of our ideology, we wanted more than just a re-stating of existing law. Just tidying up the legislation implies that those who face discrimination are well enough protected. This could not be further from the truth, particularly when it comes to the workplace.

The flashing fluorescent elephant in the room when it comes to employment discrimination is of course equal pay for women. What the government is proposing is new, but not radical. The bill gives powers that require companies with over 250 employees to publish rudimentary information about the difference between what their male and female employees are paid.

When it comes to equal pay, equality campaigners could be forgiven for thinking they are stuck in a time-warp. Flash back to the Equal Pay Act 1970 and the government of the day imposed a time delay to allow businesses to comply. Forty years later, the government is giving businesses time to comply voluntarily with its pay gap publishing requirements. How much more time is needed, and more importantly, how much longer should women wait? My thinking is that they have waited long enough.

Good regulation must engage all stakeholders. Only through listening can government understand how to give the greatest effect to its intentions and to make sure any possible negative consequences are properly accounted for.

Businesses have legitimate concerns about how new equal pay requirements might affect them. In a time of recession when margins get even tighter, new regulations that impose compliance costs must be carefully considered and where possible mitigated against, for example by excluding smaller businesses.

My experience is that businesses are alive to the problem of unequal pay, but I am slightly more suspicious about how they think it should be solved. If the business lobby is to be believed, the pay gap is all the government’s fault, because of the poor quality of careers advice given to young women. Careers advisors telling girls to be hairdressers not bankers does not account for the systematic discrimination against women that sees them receive roughly 17 per cent less pay. If only the problem was that simple to solve.

The issue goes much deeper, to the core of business practice. It is about their policies, their culture – the whole way of doing business and how this impacts on employees both male and female. All too often equal pay is seen as just a women’s issue, but what about the business culture where it is frowned upon for a man to take emergency time off to look after a sick child who has been sent home from nursery. More often than not this duty seems to fall on the mother. The implications of this mentality will ripple throughout her career and will ultimately be reflected in her (and his) pay.

To tackle this we must expose the impact of such practices through revealing the true extent of pay disparity. The government’s pay gap information is a feeble, half-hearted measure that even businesses agree won’t do what it is designed to. A proper pay audit is when you get under the bonnet of a company and actually look at the nature of the jobs, comparing them and how they are paid. Government should support businesses in this process by making it as simple and as inexpensive to carry out as possible.

As the bill passes through Parliament, where the minutiae of the differences between old regulations and new law is raked over, I can’t help fearing an opportunity to tackle gender pay inequality head-on is being missed. I very much hope it is not another 40 years before this inequality affecting half the population is looked at again.

Anonymous job applications – ending discrimination

I have blogged several times about my idea to make use of anonymous job applications – so as to end the subliminal discrimination that creeps in with some applications being discarded because of the names on them.

I floated my idea during the Second Reading of the Equality Bill and it caused quite a hoo ha. The Chartered Institute of Personnel and Development waded in to support the idea – albeit they didn’t think it should be mandatory. Some Human Resource departments were less happy and thought it a stupid idea. Well – it will be interesting to see what they say in response to the evidence that’s now been gathered.

Because – when I spoke to my amendment on anonymous job applications in the Committee Stage of the Equality Bill, I was absolutely thrilled with the Solicitor General’s response:

The Solicitor-General: That is a valid point and perhaps what we ought to do is experiment, which is what we are seeking to do in that the Department for Work and Pensions [DWP] has carried out a CV research exercise. Two carefully matched applications or CVs with names recognised as having different ethnicities have been submitted in response to the same advertised vacancies to see whether employers make different decisions depending on the names in the CVs. That research will be reported in the summer—I am sorry that I do not have an answer now, having tantalisingly mentioned the subject. The initial indications are that there is significant discrimination, so more work needs to be done to find an appropriate solution.

So – initial findings are of significant discrimination. And whilst it is clearly early days and the DWP is going to do more work – it seems clear to me that – first – those who argued there isn’t a problem which needs fixing in particular need to look very closely at what the DWP has been finding, and second – here is a simple proposal which costs business nothing but could actually deliver enormous benefits in removing discrimination in the job market.

Removing such discrimination is not only important in itself – but by providing people with equal opportunities to earn their living, it opens up all sorts of other knock-on benefits in terms of social cohesion and economic efficiency, which we all benefit from.

So once we see what the rest of the research shows – I’m hopeful that we will have a proposal that is easy, not burdensome and brings major benefits – and that of course the Government will in its wisdom decide to adopt it!

I trust that the EHRC (Equality and Human Rights Commission) will also step up to the plate and advocate anonymous job applications – and I will be writing to them as soon as I get a minute to rub together.

The 9th and 10th sittings of the Equality Bill Committee

The 9th and 10th sittings of the Equality Bill Committee

We kicked off with a debate on amendments to do with ‘reasonable adjustment’ for people with disabilities. My proposals were around making it crystal clear that a ‘reasonable adjustment’ would not just be cosmetic. So – for instance – if a person in a wheelchair couldn’t get into a bank because of steps what would a ‘reasonable adjustment’ be? Perhaps a bank might try to argue that it could just install a bell so that the person could ring and get someone to come outside to do business on the steps of the bank with the person. But the real answer to deliver an equal outcome would be a ramp (or similar access) – obviously – so that the person with disabilities could have the same ability to enter the bank as someone without such a disability.

Although the argument back was that it was clear that a bell would not be ‘reasonable’ – and so no change in the Bill was needed – the Equality and Human Rights Commission supported the amendment, believing it to be a necessary change in the Bill. The amendment would have the twin benefits of consistency and clarity of approach. It would make it clear in the Bill that, for example, a service should, wherever possible, be provided to a disabled person in the same way as for a non-disabled person.

We then had a debate about frequency – which I thought was also a valid point. If something only happened once a year – then it would not be ‘reasonable’ to have to alter buildings etc to accommodate something that infrequent. However, if it was daily, weekly etc – then the same adjustment that would be needed would be ‘reasonable’ because the frequency made it so.

We progressed to my Lib Dem colleagues’ amendments around harassment and sexual orientation, which were argued very extensively. One of the key issues here is around the fact that lots of kids get bullied in school because they are gay or look gay or act gay – whether gay or not. Now the Government is seeking to exclude the protected characteristic of sexual orientation from harassment. We are arguing that we need sexual orientation to receive the protection from discrimination that the Bill provides. Can’t for the life of me understand why the Government wants to remove that protection from such a vulnerable group.

Evan Harris (Lib Dem MP for Oxford West and Abingdon) put the point that there is a real problem in the amount of homophobic bullying that takes place in schools. It is totally unacceptable for there to be no legal protection against harassment on the grounds of sexual orientation. If that protection is there – then it would focus the minds of governing bodies of schools – whether faith schools or ordinary schools – on the fact that they have a legal obligation to protect vulnerable pupils.

The Minister seemed not to be worried about homophobic bullying in schools – and followed her brief (supplied by civil servants), which basically said that she was not minded to accept the amendment. This one seems another one that the Government has just got completely wrong.

Progressing – John Mason (SNP) put an amendment which was basically aimed at supporting someone’s religious beliefs and allowing for conscience in deciding whether someone as part of their job had to carry out a duty which was against their religious belief. You probably remember the Islington Registrar who refused to marry gay couples – i.e. perform civil partnerships. It’s that type of thing. John Mason’s argument was that the world was a big enough place to allow people to abide by their religious beliefs and conscience and employers could work around that.

I totally disagree. So – I popped up and said:

“This is a difficult area, and we are trying to get the balance right, but as discrimination law has advanced so far as to bring into play factors that did not exist before, it is important that we get it right. That extends to a whole range of issues. There might be people who do not wish to police a gay march, or firemen who will not attend certain incidents. On the execution of public duty, it is important that we make it clear here and now that carrying out public services cannot be a matter of conscience in the way that the Honourable Gentleman might wish. That is not signalling against a genuinely held conviction or people’s conscience; it is a necessity in the modern age. People with such convictions might ultimately make different choices about their careers.”

In the delivery of public services – you have to do the job and if there are elements of the job that you cannot do in all conscience – then it isn’t the job for you.

The next main barney was over ‘age discrimination’ as people under 18 are to be exempted from the protection afforded against age discrimination in the Bill. I argued the case – supported by the Young Equals lobby group – that we need to include young people in the protection. Obviously there are age related issues that need to be dealt with – children of different ages and children and adults are different in capability and understanding – and that needs to be distinguished in the Bill. But that shouldn’t be an excuse to allow plain discrimination. But Vera Baird wasn’t having it.

Another big issue next – the blanket ban on gay men from giving blood donations. My argument is that individuals should be banned according to their actual behaviour, not according to crude categories.

Currently there would be a lifetime ban on a gay man who had had protected sex once. There is no equivalent on a straight man – who may have had more partners. So to me the argument is clear – judgements should be based on people’s actual behaviour and the risks that arise from that. Stonewall agree with me and recently the Anthony Nolan bone marrow transplant trust removed their ban on gay donors. Other countries have a risk-based approach.

But in response the Government just quoted the NHS leaflet on blood supply. They weren’t even really prepared to listen or consider the unfairness and inequality of a blanket ban – especially disappointing as what it does is stop people who want to, and can, help their fellow citizens who are in need.

And whilst we are on the subject – the worst ever risk to the blood supply came from this Labour Government. They continued to allow haemophiliacs to receive contaminated treatment long after they knew it was contaminated. Consequently, haemophiliacs have been exposed to, infected and killed by this Government’s refusal to ensure the safety of blood donations. They have been contaminated with HIV AIDS, Hepatitis C and human variant CJD. Can you imagine the cruelty of their last tragic intransigence on the contaminated blood – in that they moved under 16 year olds to safe treatments (chemically produced – not from blood supply) but made any older males continue to use the contaminated blood. It’s the Government who are the biggest risk to anyone who needs blood – not gay men! As you can see – I get very heated and angry on that one.

But on to another interesting ding dong – this time between me and the Tories. I was arguing that the armed forces shouldn’t be able to be exempt from the Bill when looking at combat effectiveness. The Bill allows them to say to someone for reasons of age, disability, sex and gender reassignment, that they may not serve on the front line.

My argument is again that this should not be blanket – but that it should be according to capability and therefore you can’t just say a woman can’t do or someone who is transgender cannot fight for example. Goodness knows – as with blood donors, we are told often enough that there aren’t enough people coming forward. Of course – choose who should serve in what role based on ability and capacity – but not on crude categorisation.

And there is a very, very exciting bit to come – but I will post that separately!

Equality Bill continues through Parliament

So – Tuesday’s two sessions in Bill Committee on the Equality Bill ran about seven hours in two dollops. The key wrangles of the morning were as follows.

The Bill has provisions about discrimination against people on the grounds of disability, but that requires a definition as to at what point something is permanent enough or lasting long enough for these provisions to kick in. Having a broken leg is very different from losing permanent use of your leg for example. The Bill currently uses the phrase ‘long term’ – which means for 12 months or more. If an impairment is long term then an employer has to take reasonable steps to adapt to that.

So the argument around this in terms of employment is around removing the words ‘long term’ because if the impairment is something like depression – it may come and go. The argument went back and forth for some time over whether something was ‘likely’ to reoccur and/or liable to reoccur. The Minister felt they meant exactly the same and brought in dictionary definitions.

However, the Tories agreed with us that the issue of a fluctuating condition was important and they centred their argument specifically on depression. However, the Minister was not having it and indicated that the Government would not accept our amendment. We withdrew our amendment.

Next on the agenda was an amendment from backbench Tory MP Tim Boswell, who has a very good track record on human rights and gender issues and who had supported me in my efforts last week to get the Government to change one of the protected characteristics (those groups that are protected from discrimination under this Bill). Currently this protected characteristic is termed ‘gender reassignment’ in the Bill and we want this changed to ‘gender identity’. The problem is that ‘reassignment’ deals with those who live in another gender to their birth gender and who may or may not have had medical or pharmaceutical input – or those ‘proposing’ to do so. Tim Boswell’s attempt here is to widen the coverage by substituting the word ‘proposing’ with ‘considering’ the process of changing gender or living as another gender. Once again the Minister threw it out arguing until she was blue in the face that the wording in the Bill covered the whole gender spectrum. It doesn’t. She is wrong on this – and I really don’t understand why she sets her face so determinedly against this change which would just broaden the definition to encompass those who have no intention of living in another gender but who perhaps are not identifiably male of female. Nor does it cover those who cross-dress – who are not considering change on any permanent basis. So little is known about this very small group of people – and my fear is that the civil servants and lawyers preparing the Minister’s brief for this simply do not comprehend. It feels as if they can only deal with black and white – whilst the reality is that in terms of those with gender issues about 10% of that group can be classified in terms that the Government wants to give protection to – but the rest will undoubtedly face discrimination, intimidation and humiliation.

One of the other protected characteristics is ‘marriage and civil partnership’. My next amendment was to test why these two types of relationship got the protection of the Bill but cohabiting couples or those who are single are not. If the intention of this characteristic is to stop discrimination on grounds of your relationship status – then why only marriage and civil partnerships? Well the answer from the Minister boiled down to not being able to find any evidence of discrimination against cohabiting couples or singles where there was a little (but not very much) evidence that married couples and civil partnership couples did suffer discrimination.

Then there was the longest wrangle over religion and sexual orientation. It was so long – I can only describe it thus. Basically those of religious faith appear to want to be able to employ people who they think hold their values and beliefs. Obviously it is OK to discriminate in employment if the job is proselytising – i.e. it is obvious that if you are employing a Catholic priest they need to be Catholic. But it shouldn’t be ok to, say, discriminate against a caretaker couple in the same way. Also – it was clear from the argument that there is a suspicion that the religious lobby do not want homosexuals in their employ because they believe that homosexuality – or more accurately gay sex – is wrong. Well – that’s the basic debate!

In the afternoon session I moved an amendment which basically argues that you shouldn’t be confined to one discrimination when taking action. It is possible that someone could be discriminated against racially because they were black and also sexually because they were female. You get the idea. There is often multiple discrimination and people should be able to bring a complaint or claim on multiple grounds. The Government is consulting on this (again – after two years of consulting already) and is minded to allow two protected characteristics but not more. We argued a bit as I felt that it shouldn’t be about business finding it difficult to deal with the complexity of multiple discrimination – but about justice. And if the discrimination was based on any number of issues – so should follow the ability to take action. You shouldn’t be able to get away with discrimination on one ground just because you’re also discriminating on other grounds!

One success of the day was the Government agreeing to our amendment 133, which replaced some really confusing wording around the asymmetry of disability discrimination. I know – it sounds like gobbledygook – but I’ll try. All discrimination law stops us treating people differently because of any of the protected characteristics – race, gender, sexual orientation, age etc. But with disability – it is quite different. The law allows us to treat someone who is disabled more favourably because only by doing so will they achieve equality with others. For example I would provide a ramp for someone in a wheelchair so they could enter a public building. I would thus treat them more favourabley to enable them to have equal access to someone who is able bodied. This is called the asymmetry of disability discrimination. And the Government accepted that the wording in the Bill was confusing.

Our amendment said basically leave out the Government’s wording and substitute with this:
‘If the protected characteristic is disability, nothing in this section shall be taken to prohibit more favourable treatment of a disabled person on the grounds of a disabled person’s disability’.

Yes – and that is the understandable and better version! Bet you can’t wait for the next sitting.