Equality Bill [Lords] |
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Meg Munn: There is a lot of note passing, in order that I might respond to the hon. Gentleman’s points. Column Number: 117 I will deal first with amendment No. 83, which, as the hon. Member for Epping Forest (Mrs. Laing) set out, seeks to illustrate by example the provision in clause 28, which provides for the commission to provide legal assistance to individual victims of discrimination. Specifically, subsection (3)(d) says that the commission may provide or arrange any other form of assistance. The amendment seeks to add to that provision
specifying that the commission may be required to meet the other party’s costs in proceedings where the litigant it was supporting was unsuccessful. If costs were ordered against a litigant supported by the commission, it would be reasonable for the commission to be liable. That is certainly the case with legal aid support. However, I consider the amendment unnecessary. The point of subsection (3)(d) is to provide for any form of assistance. By specifically listing what those forms of assistance may be, there is an expectation that the list may be exhaustive. That is not a road down which we want to go. Therefore, we prefer the drafting to remain open. The matter of costs awarded against an individual assisted by the Commission for Equality and Human Rights will be covered in the agreement on assistance reached between the commission and the individual concerned. In view of that, I hope that the hon. Lady will be content to withdraw amendment No. 83. Mrs. Laing: I accept the Minister’s explanation. Again, I wanted to have it put on the record that the Government’s intention, and our intention in passing the legislation, is to ensure that small businesses, charities and other such small bodies that lack access to considerable funds will not be disadvantaged by anything in the legislation, especially if they have done nothing wrong and succeeded in being proved right in the case brought. My second recurring theme is that we must not— The Chairman: Order. May I ask whether this is an intervention or a speech? Can the hon. Lady restrict her remarks? Mrs. Laing: Thank you, Mrs. Anderson. I thought it was a speech. Meg Munn: I thought it was an intervention. Mrs. Laing: If it is an intervention, I beg your pardon, Mrs. Anderson, as it is far too long. I can finish the point at the end of the Minister’s remarks. Meg Munn: I think the confusion has probably arisen because I am dealing with two slightly different areas concerning the amendments. If I may deal with the amendments from the hon. Member for Oxford, West and Abingdon (Dr. Harris), I will then be happy to hear the hon. Lady’s further comments. Column Number: 118 The issues raised by amendments Nos. 92 to 94 are that the commission may support cases that rely on both the equality enactments and other matters, such as discrimination and unfair dismissal, or discrimination and human rights. These are termed combined cases. The commission can, however, only support combined cases while they relate to the equality enactments. If those enactments and the arguments for them fall away, the commission must stop supporting the case. If continued support were allowed, it could increase the number of cases seeking support from the commission—especially cases with limited or spurious connections to the equality enactments. More resources would thus be needed to weed those cases out, which could dilute the focus of the commission’s work in supporting equality enactment cases, where it can add real value. The commission should not support cases solely under the Human Rights Act 1998. Public funding is already available for such cases. To duplicate that would cause unnecessary confusion. Human rights cases can cover a wide range of areas, and would create a problem of sifting and selection for the commission. As the hon. Member for Oxford, West and Abingdon acknowledged, we have provided an order-making power to permit the commission to continue supporting a combined equality and human rights case should the equality arguments fall away. We have no way of knowing how many cases that would catch, and do not want to legislate in a vacuum. Once the commission is up and running, we will be able to talk to it and to take a view on whether an order should be made under subsection (6). Such orders would not be made on a case-by-case basis, but would apply either to all equality and human rights combined cases or to a particular class of case. That is a positive and pragmatic approach to the known unknowns, allowing us to make a decision when we have the evidence to do so. The hon. Gentleman read out a recommendation from the report of the Joint Committee on Human Rights. The Committee’s recommendations were considered carefully and the clause was amended accordingly on Report in the House of Lords. The order-making power has been vested in the Lord Chancellor because he is responsible for the operation of the legal system, including providing proper support for cases and for human rights. If it is activated, the power will significantly change the CEHR’s support for human rights cases, so we consider that that is appropriate. Dr. Harris: The Minister is right that a change was made following the JCHR report in respect of disapplying the strict criterion that article 7(1) in schedule 1 of the Human Rights Act 1998 must apply. Therefore, I recognise that, even though there was no direct Government response to that report, the response was in the change that was made. That is progress in the direction that I favour. Column Number: 119 Vera Baird (Redcar) (Lab): There are two things on which it would be helpful to have advice. First, at what point does an equalities point fall away? Let us suppose that somebody brings a joint case and the judge hears the equalities element first and rules against it, but the person has every intention of appealing against that ruling. Is it still a live issue? Can the commission carry on funding the rest of the case, including the appeal, or should the case be stopped there and then and the Lord Chancellor’s help be sought? That links to my second point which is, what would happen if, as is not impossible, a judge chose to take the two strands separately—equality first, then human rights—and ruled against the equality part? Is it expected that the case would stop while the applicant applied for legal aid? That would be very inconvenient for the High Court. I do not expect the Minister to have the answers at her fingertips, but the questions occurred to me as we worried our way through the point. Meg Munn: I am grateful to my hon. and learned Friend for raising those issues. I expected her to do so because of her extensive experience in the legal system, and she is right to say that I do not have all the answers at my fingertips. However, I am assured that, if an equality matter were to fall away, that would happen at an appropriate point in proceedings. It would not happen, say, when a court appearance was due to take place the following day but, as she suggests, when a hearing had happened and there was the possibility of an appeal. However, she raises some interesting and important points about whether such an appeal should continue. In order to make matters absolutely clear, I shall write to her, with copies to every member of the Committee, on that point and on the issue of judges who consider different aspects of a case separately. The hon. Member for Oxford, West and Abingdon mentioned conciliation. Clause 28(3) allows for the provision not only of legal advice and representation, but of
If the Lord Chancellor made an order under subsection (6), it could allow the continued provision of such dispute resolution facilities in respect of a case in which only human rights points remained. Given my comments on the suitability of human rights points for conciliation, however, the commission would need to be sure of the suitability of any facilities that it wished to provide. I trust that that answers the hon. Gentleman’s points and that he and the hon. Member for Epping Forest will not press their amendments. Mrs. Laing rose— Dr. Harris: May I delay the hon. Lady for a moment? I am grateful to the Minister for drawing my attention to clause 28(3) and I shall certainly go away and think about what she said. Mrs. Laing: I shall make only a very short speech, having wrongly made a very long intervention during the Minister’s remarks. I accept her explanation of why amendment No. 83 is unnecessary and I am
Amendment, by leave, withdrawn. Meg Munn: I beg to move amendment No. 12, in clause 28, page 18, line 1, after ‘sex’ insert ‘(including reassignment of gender)’. The Chairman: With this it will be convenient to discuss Government amendment No. 13. Meg Munn: The Government have tabled the amendments to clarify the provisions of subsection (11)(a) so let me set out the context and the effect of the amendments. Subsections (11) and (12) enable the commission to support proceedings alleging that domestic legislation is incompatible with EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Without them, the commission would be able to provide assistance only where the proceedings related wholly or in part to one or more of the equality enactments. Those enactments are defined in clause 33 and include all the domestic legislation prohibiting discrimination, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976. On Third Reading in the other place, we tabled amendments to introduce subsections (11) and (12) and to ensure that the new commission did not have fewer powers available to it than the existing commissions. We did that because case law had determined that the Equal Opportunities Commission had the powers set out in those subsections in respect of gender. Hon. Members will note that that theme runs throughout the Bill and that we are introducing provisions to enable the new body to continue the work of the existing commissions. When we introduced subsections (11) and (12), we considered that, as a result of case law, gender reassignment was included in the term “sex”. It was always our policy intention to capture gender reassignment in the list of community law in subsection (11)(a). However, we have decided to place our policy intention beyond doubt by making express provision for gender reassignment. Amendment No. 12 achieves that. Similarly, I have tabled amendment No. 13 for the purposes of clarification. Concerns were raised in the other place that making express reference in subsection (11)(a) to
when there is no mention of race implied that we attached less importance to community law provisions relating to equality of opportunity for race. That was never our intention. We made an explicit reference to equality of opportunity between men and women in
1.45 pmAlthough equal treatment is mentioned in the race directive, it is not a legally distinct concept from discrimination based on racial or ethnic origin, which is the legal basis for the race directive, as set out in article 13. We therefore do not think it appropriate to include it. On further reflection, we are persuaded that it is not legally necessary to make express reference to equality of opportunity based on sex in order for the clause to cover the sex equality provisions under articles 2,3 and 141 of the EC treaty and in the associated directives already mentioned. Parliamentary counsel has advised us that there is no demarcation in Community law between discrimination-based provisions and equality-based provisions. Therefore, the reference in subsection (11) to discrimination grounds is sufficient to embrace Community provisions on equality. The reference to sex in subsection (11)(a) therefore covers equality of opportunity and equal treatment, which includes equal pay and so on. Consequently, we see no need for an express provision on equality of opportunity between men and women in the clause. Government amendment No. 13 therefore proposes removing it. I trust that I have made the purpose of the amendments clear. Amendment agreed to. Amendment made: No. 13, in clause 28, page 18, line 2, leave out
Clause 28, as amended, ordered to stand part of the Bill. Clauses 29 to 31 ordered to stand part of the Bill. Schedule 2 Inquiries, investigations and assessments Meg Munn: I beg to move amendment No. 21, in schedule 2, page 73, line 5, at end insert— ‘Intelligence services
Column Number: 122 The amendment places a limitation on the scope of inquiries that the commission may undertake under clause 16. At present, the commission may undertake an inquiry into any matter relating to its duties under clauses 8, 9 and 10. Under the amendment, the commission would not, during an inquiry, be able to consider human rights matters relating to the intelligence services, which are defined in paragraph 14 of schedule 2 as the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. We propose the amendment in order to ensure that the commission’s inquiry power does not jeopardise the important work of the intelligence services. That is a reflection of the broad scope of human rights considerations. A mechanism already exists by which judicial reviews may be brought against the intelligence services; the investigatory powers tribunal is properly equipped to handle matters and evidence that may be sensitive to national security. The convention rights under the Human Rights Act may be relied upon by claimants in such cases. The exclusion does not affect the CEHR’s ability to conduct inquiries into equality matters in pursuance of its duties under clauses 8 and 10, so long as it expressly excludes human rights matters from consideration. It is a small but important change, which will ensure that the work of the intelligence services is not compromised. Amendment agreed to. Schedule 2, as amended, agreed to. Clause 32 ordered to stand part of the Bill. Clause 33 Equality and human rights enactments Vera Baird: I beg to move amendment No. 51, in clause 33, page 21, line 13, at end insert—
I can put this succinctly. Clause 33 defines equalities and human rights enactments for the purpose of part 1. Subsection (1) defines equality enactments. My amendment would add three extra sets of regulations to that definition. The Equal Opportunities Commission, on whose behalf I raise the issue, wants to probe why those enactments, which seem to be in the same family as those set out in the clause, are not included. Meg Munn: I thank my hon. and learned Friend for raising those important issues. I welcome the work of the Equal Opportunities Commission, which, through campaigns on part-time workers and pregnancy in employment, has brought much needed attention to and raised awareness of the number of employers who still fail to maximise the benefits of the work force, particularly women. I am sure that Committee
The amendment would extend the scope of the new commission’s remit, so that it would be able to exercise its duties and use its powers in areas far beyond the confines of discrimination law and human rights. It would add employment rights concerned with maternity leave, parental leave, flexible working, termination of employment, redundancy, protection from victimisation and part-time working to the list of equality enactments in clause 33. Those employment rights have played an important role in helping women to advance in the workplace and enabling parents and carers to balance work and family life, but there is a difficulty in adding the relevant employment enactments to clause 33. The commission exercises its regulatory role through its powers to support cases, to issue codes of practice and to bring enforcement actions. The regulatory role is confined to discrimination law, as has been the case for the existing commissions. It would be inappropriate to extend the regulatory role to areas of legislation that go beyond discrimination, because it would create a risk that the new commission would lose focus on its core role, which is centred on equality and human rights. There is plenty, however, that the new commission will be able to do. Several provisions in the Bill give it wider powers than those that are available to the existing commissions, enabling the new body to take forward the excellent work of the Equal Opportunities Commission. It may be helpful if I set the powers out in a little more detail. Clause 8 sets out equality and diversity duties. The new commission will be able to promote equality for women and men in their roles as carers, parents and part-time workers, thus building on the good practice of the Equal Opportunities Commission and Disability Rights Commission. The new commission will be able to use its powers to provide general advice, to undertake promotional work and to encourage good practice to drive forward work with employers in the relevant sector. It will also be able to use its inquiry powers, and its ability to comment on the impact of any law or proposed change in the law, to recommend action to Government on such issues. It will have wide-ranging powers to promote equality for women in all areas of their lives, just as the Equal Opportunities Commission has. That is separate from its powers to enforce specific items of legislation, as covered by the clause. The commission will be able to promote equality for women and men as carers and in aspects of working life such as family-friendly arrangements and pensions. It will work on a very broad front and be able to cover such issues as domestic violence. The new body will be able to provide legal assistance to individuals in cases that combine a discrimination law provision with a matter dealt with under other legislation, including those listed in the amendment. Committee members will want to be aware that, in the longer term, the Government are reviewing the entire framework of discrimination law, through the
Vera Baird: I am grateful for that reply. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Sandra Gidley: I beg to move amendment No. 73, in clause 33, page 21, line 13, at end insert—
The Chairman: With this it will be convenient to discuss the following amendments: No. 74, in clause 35, page 22, line 6, at end insert—
No. 84, in clause 80, page 45, line 40, at end insert ‘or transgender status’. No. 71, in clause 82, page 50, line 2, at end insert
No. 72, in clause 82, page 50, line 2, at end insert
New clause 10—Discrimination on grounds of gender reassignment—
Column Number: 125
Sandra Gidley: We tabled this group of amendments to query why there appears to be no goods and services protection for transgender people in the Bill. That is particularly disappointing, because in its 19th report, which was on the Gender Recognition Bill, the Joint Committee on Human Rights stated in recommendation 103:
During the passage of that Bill, the issue was discussed at some length and I shall not repeat much of the dialogue. However, in his summing-up, the Minister said:
That was more than a year ago. One would have thought that there has been sufficient time for provisions to be brought forward in this Bill. Although I concede that this Bill was originally conceived to establish a commission for equality and human rights rather than to tidy up anti-discrimination legislation, when it was published it included substantive anti-discrimination provisions—most notably, a public sector duty to promote gender equality and protection against discrimination in the supply of goods and services on grounds of religion or belief. One change has already been made. Why not make another? To some extent, transgender people are protected against discrimination in employment and vocational training through the Sex Discrimination (Gender Reassignment) Regulations 1999. However, because those were introduced under the European directive, it was decided not to extend the scope of the 1972 equal treatment directive by extending protection to goods and services. Now that appropriate primary legislation is being considered, that omission could easily be remedied. Ministers have indicated a willingness to consider a change under the proposed single equality Bill, but there is some doubt about whether that would be enacted in time to comply with the EU directive on gender discrimination outside the workplace, which requires protection to be in place by December 2007. If the Minister elaborated on the time scales, that would be helpful. Column Number: 126 The omission from the Equality Bill of goods and services protection for transgender people has excluded them from full coverage under the public sector duty on gender. The gender duty will therefore have to be implemented with guidance that transgender people are not currently fully within its scope. Unless the Government intend permanently to exclude transgender people from the public sector duty on gender, the statutory code of practice and the EOC guidance will have to be rewritten within months of the Bill’s entry into force. That will create confusion and impose an entirely unnecessary administrative burden on the 44,000 public authorities that have already implemented the gender duty and will subsequently have to revise their plans. 2 pmI shall run through what the amendments would achieve. Amendment No. 73 would add to the list of equality and human rights enactments the two major pieces of legislation covering the rights of transgendered people. It could be argued that the Sex Discrimination (Gender Reassignment) Regulations 1999 amend the Sex Discrimination Act and that the matter is covered by the reference to the SDA. However, explicit inclusion would provide clarity and send a strong message. The Gender Recognition Act 2004 is primarily a human rights enactment and implements in UK law the 2002 ruling of the European Court of Human Rights in Goodwin v. UK and I v. UK. It is to a small degree an equality enactment, but the purpose of the amendment is to clarify the Government’s intentions when dealing with transgendered people. Amendment No. 74 would add to the interpretation clause a definition of “gender reassignment”. The phrase is used in the Bill but is otherwise undefined. Instead of seeking a new definition, we propose to use the definition in the Sex Discrimination Act as amended by the 1999 regulations. If there is not a clear definition in the Bill, there may be a risk that the courts will be asked to consider alternative interpretations. Similar cases were taken to the European Court of Human Rights and, consequently, legislation had to be amended. New clause 10 simply mirrors the clause on discrimination on grounds of sexual orientation to cover gender reassignment and transgendered people. Not all of our proposals may be necessary but there is great concern in the community that the Bill does not go far enough to cover some of the many loopholes that people experience. Amendment No. 71 is an attempt to address the omission of transgendered people from the public sector duty to promote gender equality and to raise the importance of such issues in the mind of public authorities. It is particularly important for transgendered people who have experienced significant institutional discrimination in both employment and the provision of goods and services. Amendment No. 72 would add a provision covering harassment. Column Number: 127 It would be helpful if the Minister explained why the Government seem to be lagging behind in the Bill, confirmed whether there will be a firm promise in the single equality Bill when it is introduced and whether that will be in time to avoid some of the timing problems that I outlined. |
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