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……………………

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 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.