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Mr. Boswell: If an employee becomes a father for the first time and requires, beyond the normal immediate provisions of paternity leave, time off for “exceptional family circumstances” under employment law, would there be a prima facie breach of employment law or would there be discrimination if the boss said, “Look, I am really getting fed up with this. You are away all the time, you are producing these pretexts which arise out of your being a father and I am going to sack you.” We need an assurance that the boss would not be able to do that.
The Solicitor-General: Yes.
Let me top off my argument on the amendment, which is acknowledged to be probing, by saying that I agree that it would be only beneficial if we could move to a situation in which we can commit to extending maternity leave with pay to 52 weeks at some point. After the first six months, during which we think that leave is better allocated to the woman, the leave would become transferable. That would mean that the woman could take six months leave and then the man could do so. In a direct sense, that would be a great aid to work-life balance and to redressing the traditional imbalance in roles.
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That leaves me with the question of the protection of maternity and breastfeeding, raised by the hon. Member for Hornsey and Wood Green. The 26-week period of protection is not the end of the protection. We have brought in special protection because we want to enhance the 26-week period, which is what the World Health Organisation and the Department of Health recommend for exclusive breastfeeding. We want to frame that and light it up, to make it clear that there is special protection during that period. We want to use every available facility, including discrimination law, to encourage breastfeeding to continue.
Lynne Featherstone: I do not understand why there should be any time limit for breastfeeding. Why should discrimination be allowed at any point?
The Solicitor-General: I do not know how long the hon. Lady has in mind, but discrimination is not allowed at any point.
Lynne Featherstone: As I understand it, six months is the minimum EU requirement. Is that correct?
The Solicitor-General: Six months is the recommended period during which breastfeeding should be the exclusive way that the child is fed. After that, the recommendation is to start to mix foods, but of course breastfeeding may continue. The hon. Lady need not worry about protection stopping. It does not stop. It is sex discrimination in any event to discriminate against a breastfeeding mother. We have made a special characteristic of those first six months for the purpose of enhancing their importance.
It is a shame that the relatively recent 2005 infant feeding survey showed that the majority of mothers in this country stop breastfeeding long before the recommended 26 weeks are up. We want to flag up that period and give encouragement. As I have said, after that period, any discrimination continues to be direct sex discrimination. If we want to get technical, there has been a successful claim, notwithstanding that sex discrimination requires a comparator, but that has not presented an obstacle.
I hope that with that reassurance, the amendments will not be pressed, although they have provoked a useful debate.
Mr. Harper: I thank the Solicitor-General for that useful debate. Given her reassurances to me, the hon. Member for Hornsey and Wood Green and my hon. Friend the Member for Daventry, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lynne Featherstone: I beg to move amendment 111, in clause 4, page 4, line 15, at end insert ‘caste’.
An amendment to outlaw discrimination based on a person’s caste.
The amendment looks again at protected characteristics. We are seeking to probe the Solicitor-General’s thinking on caste being a protected characteristic. The caste system exists in the United Kingdom because it has been imported by a large south Asian immigrant community. My understanding is the caste system makes distinctions between different sections of society by dividing communities into rigid social groups determined by birth and/or occupation. That type of behaviour in this country is exactly what the Bill, in its essence, seeks to outlaw, so we ought to give serious consideration to whether caste-based discrimination should be specifically outlawed by making caste a protected characteristic.
I am aware that the Government claim that they have found no evidence of caste discrimination, but I am interested to hear from the Minister what efforts the Government have made and how they have sought such evidence. Does the hon. and learned Lady agree that it is likely to be more difficult to find out whether discrimination exists in an immigrant community because of the inherent difficulties of consulting members of the community about something they know is not part of the ethos? Just because the Government have not been able to find the evidence, should we not question whether that discrimination exists in some form? Those who might suffer caste discrimination—untouchables, or whatever—are less likely to be plugged into those routes, to come forward to make a complaint, or to use the channels that others who are not in a caste system might use.
The evolution of the Bill has been based largely on engagement with established and organised lobby groups that are well geared to respond to the Government’s consultations, but I am not sure that that is true of those who experience caste discrimination. If the Government are not persuaded, rather than miss the opportunity of a generation to outlaw a potential form of discrimination that flies in the face of everything that the Bill tries to do, why not allow the possibility of an enabling clause to be enacted by a Minister in the future, if now is not the right time or if the Minister is not minded to add it as a protected characteristic? Perhaps we can enact it to protect against a future where we discover the evidence.
Mr. Harper: I rise to speak briefly for two reasons. First, I want to say one or two things about the amendment. It and the following amendments raise another issue, which is relevant to how the Minister might decide to tackle this one. Part of the point of the Bill is to codify and simplify the law. If we go through the population, pick out lots of different groups and invent a new protected characteristic for every single one of them, there is a danger that we will make the whole thing very complex. I am a little concerned that that is what we are in danger of doing.
On a specific point, I suspect that the hon. Member for Hornsey and Wood Green has had correspondence from the anti-caste discrimination alliance. It also sent a copy of the letter from the Government Equalities Office. Two points were raised, and I want to the Minister to address them. The first is on the lack of evidence. GEO specifically referred to an informal survey of 20 key stakeholders that the Department for Communities and Local Government conducted to see if they were aware of evidence. It would be helpful if the Minister outlined the nature of the stakeholders, without necessarily listing them all, because there is concern that the stakeholder groups might well be those from castes that do not suffer discrimination. Unless the Government spoke to organisations representing those who do suffer discrimination, they may well not have picked up evidence of it. We would appreciate some reassurance on that point, as well as on whether the GEO or the DCLG is keeping the matter under review, so that if evidence emerges, the Government can take the appropriate action.
Secondly, if such evidence became available, rather than invent a new protected characteristic, could caste be subsumed in the protected characteristic of race, given that that already includes colour, nationality and ethnic or national origin? If it was thought that it was sensible to act in that case, rather than create yet another protected characteristic, could a new dimension be added to an existing one?
The Solicitor-General: The amendment would add caste to the list of characteristics. I am invited to add it, in a sense, speculatively, and I do not propose to accede to that invitation. We are always willing to consider whether there is a case for legislating on caste discrimination, but it is not a matter of the Government “claiming”, as the hon. Member for Hornsey and Wood Green put it, that there is no evidence of it; it is the fact. We have done our best to look for the necessary evidence, but we have not found any. There really is not sufficient evidence to suggest that caste discrimination is a significant problem domestically. We would protect if it was seen to be a problem, but we cannot find any evidence to justify such a measure. One has to appreciate the areas in which domestic legislation prohibits discrimination—in the workplace, in vocational training, in the provision of goods, facilities and services, in education, in the management and disposal of premises and in the exercise of public functions. There is no evidence that, in those areas, caste discrimination is occurring.
In response to a report published by the Dalit Solidarity Network in 2006, the Department for Communities and Local Government carried out what the hon. Member for Forest of Dean talked of as an informal look, but was, in fact, a scoping survey. The survey was carried out by contacting a number of Hindu, Sikh and Muslim organisations to ask whether they were aware of any evidence that individuals or communities had been discriminated against on the ground of caste in Great Britain. The scoping survey was, in fact, designed to pave the way for a formal consultation if the evidence came up in the survey, but it did not, so there really was nothing to take us further forward in a process that we were perfectly willing to engage with if there had been.
Although I am sure that many members of the Committee have had correspondence about this issue from what I shall in shorthand, without the slightest disrespect, as a write-in campaign, there is, apart from the odd piece of anecdotal evidence, none of which we have been able to drive down to a factual basis, still no evidence from that campaign that the territory which can be covered by anti-discrimination legislation is impacted upon by caste at all.
John Mason (Glasgow, East) (SNP): I take the Minister’s point that there is very little evidence at the moment. Can she at least give the assurance that, if evidence comes to light in the future, she will look at this issue again?
The Solicitor-General: Yes, we are considering looking at it. I have found out about the stakeholders surveyed. The Hindu Forum of Britain and the Hindu Council were the two largest and the best we could do in terms of representative organisations in that field. They were, and to this day remain, totally against the introduction of caste legislation. We consulted a variety of predominantly Hindu groups and some Sikh and Muslim groups as well, and because this was a scoping survey and would have carried on to a more profound consultation, people did their best to ensure that we were not talking only to the discriminators, as it were, and not talking to the discriminated against.
Lynne Featherstone: Will the Minister go back to those organisations to ask why they were so against caste being included as a protected characteristic?
The Solicitor-General: Because it is socially divisive to have legislation against something that is not happening and is needed by no one. The hon. Lady is inviting us to introduce a new characteristic when there is no evidence that protection is needed. That is hardly going to contribute to community cohesion, and I think that those groups are very sensible in taking the view that they do, having, we are satisfied, conscientiously sought for what we asked.
As I said, we intended to carry on to a real investigation and consultation if there was the evidence to justify such a step. We were very willing indeed to do that, and we have no intention of stopping looking now that we have looked. Officials from the DCLG and the GEO, the Department that sponsors the Bill, are continuing to monitor the situation and to meet representatives of interested parties, but even as that happens, we are still not getting any evidence. The concern was rightly raised, but I hope that it has now been put to rest.
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Lynne Featherstone: I am reassured by the sincerity of the Solicitor-General and the efforts made by the Government to find evidence. I still worry about whether they will come back if such things occur, but at this point I am minded not to divide the Committee. I accept the reassurance of the hon. and learned Lady that the Government will keep looking, but hopefully no evidence will turn up. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Dr. Harris: I beg to move amendment 112, in clause 4, page 4, line 15, at end insert—
‘genetics and family medical history’.
An amendment to outlaw discrimination on the basis of a person’s genetics or family medical history.
I rise to speak to the amendment standing in my name and that of my hon. Friend the Member for Hornsey and Wood Green. It relates to the suggestion that there should be an additional protected characteristic—specifically that of genetic information, including family history—to protect those who might suffer from genetic discrimination.
The Committee will know that the matter is a live issue these days not only in this country, but in the United States. It was the subject of consultation in the discrimination law review, the issue being that those who are genetically susceptible to a condition might be discriminated against in the provision of insurance in a way that really damages their life chances. Insurance is just one way, but it is the most well known.
We are talking about genetic predisposition, and such people do not get the coverage of the disability protected characteristic. They would be pre-symptomatic. They would not be exhibiting symptoms. Indeed, they would not yet have the condition, but the likelihood might be such that it was significant enough to worry those doing actuarial calculations on behalf of insurers and would deny such people insurance and leave them to be discriminated against. Moreover, they could be discriminated against if the information became available in respect of applications for work, as employers might not want to take on someone whom they considered possibly being at high risk of not being able to continue at work indefinitely or for a specific time.
The matter was subject to consultation and the Human Genetics Commission, which the Government set up to advise them on
“new developments in human genetics and their influence on individual lives, with a particular focus on social, ethical and legal implications”,
responded to the discrimination law review, arguing that discrimination on the grounds of genetic information should indeed be prohibited. I shall take the Committee through some of its reasons for making that decision because it is important that we recognise the strength of the case for such grounds to be included in the Bill.
The commission said:
“Unfair discriminatory treatment of groups or individuals on grounds of genetic difference is unacceptable”.
We could say that using the adjective “unfair” means that it is automatic that we would describe something that is unacceptable as unacceptable. However, I can say more than that: there is a public interest in ensuring that, rather than creating a group of people about whom it might be argued that it is justifiable to discriminate against them on narrow or even broad actuarial grounds, it is wrong to allow the development of a group of people—a genetic underclass—who are not able to get insurance or find it difficult to get employment. The alternative is that we could ban the discrimination and share the risk on those actuarial calculations of insurance, for example.
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