RESPONSE TO THE DISCRIMINATION LAW REVIEW

A Framework for Fairness: Proposals for a NEW Equality Bill for Great Britain

Contents

1.Summary

2.Why is new equality legislation needed?

3.Basic principles

4.Principles into practice:

A.Aspects of the Discrimination Law Review with which the Commission broadly concurs

B.Aspects of the Discrimination Law Review which the Commission believes need to be further reviewed or developed

C.Issues the Commission consider should have beenaddressed or more adequately addressed in the Green Paper

1. Summary

The Commission for Equality and Human Rights (the Commission) welcomes the government’s declared intention toenact a modern legal framework for equality: a new equality act for Great Britain. The Commission therefore also welcomes the publication of the Green Paper Framework for Fairness, setting out the conclusions and recommendations of Discrimination Law Review (DLR) and inviting comments from the widest possible range of interested persons and organisations. The Commission regrets, however, that the proposed scope of a new equality act, as reflected in the Green Paper, falls far short of ministers’ stated ambitions when the DLR was established and the expectations they had created for new legislation which is coherent, simple and derived from fundamental principles. In this response we set out

a)why we believe new legislation is needed;

b)what we believe should be the scope of the legislation; and

c)a limited number of issues of principle which we believe need further development or review.

Our views are informed by consultation over a very short period of time with the three former equality commissions – the Commission for Racial Equality (CRE), the Equal Opportunities Commission (EOC) and the Disability Rights Commission (DRC) – and with organisations concerned with tackling discrimination on grounds of sexual orientation and age, trade unions and business organisations.

As the main statutory body with responsibility for enforcement and monitoring of equality legislation in Great Britain, we expect to work closely with relevant officers and ministers as the detailed plans for a new equality bill are developed. Helping to shape the content of the legislation that will underpin a major part of our work in the foreseeable future is one of the most important tasks we will undertake; we are attempting to do so at this initial consultation stage before we are fully constituted and operational.

We have had the benefit of seeing the responses to the Green Paper by the former equality commissions. Where these submissions relate to matters that are specific to their particular mandate (that is, matters relating to race, colour, nationality, ethnic or national origins for the CRE; disability for the DRC; and gender, marital status, pregnancy and gender-reassignment for the EOC), we broadly endorse their comments and recommendations. Where the proposals in the Green Paper raise wider issues, our response is based on principles we believe should apply across all the protected grounds. We have also benefited from access to the submissions of other stakeholders.

2.Why is new legislation needed?

It could be said that the government is the victim of its own success. Over the past ten years, the government has produced major legislative initiatives to combat discrimination and to promote equality of opportunity, which have been widely welcomed. Existing legislation– the Race Relations Act 1976 (RRA), the Sex Discrimination Act 1975 (SDA) and the Disability Discrimination Act 1995 (DDA) – has been strengthened: its scope extended; new protections added; a shared burden of proof adopted; and new positive equality duties have been imposed on public authorities.

New laws now provide protection against discrimination on grounds of religion or belief, sexual orientation and age.And the new Commission for Equality and Human Rights has been established. So the first reason for new primary legislation is to replace the complex matrix of statutes, regulations and orders that employers, service providers, members of the public and the Commission must negotiate, interpret and seek to apply, with a single piece of legislation that provides simpler, clearer, consistent anti-discrimination protection.

More fundamentally, new equality legislation is needed to meet the very different conditions and expectations – social, political and legal – that exist today, and which either did not exist or had not been fully appreciated when the major planks of our current equality law were laid out.Some of the major changes include the following:

a)Demographic changes: a more diverse population in terms of ethnicity, national origins and faith, and an increased proportion of older people.

b)Greater participation by women in the labour market.

c)Greater appreciation of diversity accompanied by a greater public acceptance of the need to do something to eliminate unfair discrimination.

d)Growing evidence of the need to increase the pace of change.

e)Greater confidence among many disadvantaged or excluded groups in demanding rights to fair treatment and full participation in civil society.

f)Wider appreciation of the role of institutional failure and bias in creating and perpetuating discrimination and inequality.

g)Stronger evidence that meaningful and lasting change depends on consistent public policy and strong institutional support,in addition to well-drafted legislation.

h)The gradual development of a human rights culture, following the enactment of the Human Rights Act 1998.

i)New obligations under EC law to introduce equality legislation with appropriate institutional arrangements, rights to redress, and effective, proportionate and dissuasive sanctions.

j)Growing awareness ofthe shortcomings of the current legal framework.

k)Increasing concern about the complexity and inconsistencies of the existing law for those who have to comply with it, those who seek to use it andthose who have to monitor and enforce it.

l)Examples of policies and legislation under devolved powers that set higher equality standards for Scotland and Wales than those which currently apply across the whole of Great Britain.

Taken together, these factors lead us to believe that what is needed is more than an overhaul of the existing law; the DLR and the present consultation should lead to a new equality act,which not only meets the new conditions and expectations, but also proclaims that rights to equality and protection against unfair discrimination are an integral part of our unwritten (or, in the future written) constitution. New equality legislation must therefore be based on profound principles which have wide support.

Basic principles

The DLR acknowledges that existing equality legislation has not achieved the change its proponents had hoped for, and that inequality, discrimination and disadvantages persist today for groups which for several decades have had rights on paper to equal treatment. Yet in this Green Paper, there is little evidence that the DLR has identified the factors that would ensure that a new equality act could make a significant difference.

We are not suggesting that equalitylaw is the only tool to combat discrimination and promote equality, or that legislation by itself would be able to eradicate the main causes of inequality in British society. Indeed, the Commission was established with explicit powers and duties to use multiple means to change the cultures and practices that perpetuate inequality.We know that comprehensive strategies are needed to tackle the economic, as well as social and political, factors that perpetuate the unacceptable inequalities described in the Equalities Review.Nevertheless, for most people and institutions, the law is regarded as the main 'driver' for change.This makes it vitally important that we use the opportunity provided by the DLR to get the law right.

A new equality act cannot be merely an exercise to tidy up and reduce inconsistency – though it should certainly achieve that end, and must do so without eroding the gains already made. It should reflect the changes listed above and meet new challenges. It needs to be more intelligible than the existing legislative patchwork, enabling those who seek to use the law to enforce their rights – and those on whom the law imposes obligations – to work without bureaucratic barriers.It must be a more fundamental statement of our commitment to equality in a diverse society; and it should provide us with the tools to tackle the range of issues which are faced by such a society.

While its terms of reference required the DLR to consider ‘the fundamental principles of discrimination legislation and its underlying concepts’, regrettably the Green Paper does not disclose the DLR’s conclusions, nor does it invite wider comment on these fundamental questions. The Commission believes that there is an urgent need for widespread debate among all relevant stakeholders on the essential principles on which the provisions of the new equality act should be based. Such debate must, necessarily, precede any final decisions on the detailed content of the new act.This process should be reflected in the legislation itself, with a first chapter stating the basic principles of equality under the law that should shape the provisions of the act. It should be against these basic principles that the provisions of the act are understood, applied and interpreted.They should be an integral aspect of any move towards a larger, written constitution or statement of rights for Great Britain.

The real promotion of equality and the elimination of discrimination require a ‘constitutional promise’, not merely the creation of a detailed set of rules and processes.Without such a constitutional vision, the creation of a single equality act will fail in its ultimate process.It will fail because, like previous legislation, it will be about outputs not outcomes, and because it will remain inaccessible and impossible to understand without lawyers.While there will always need to be exceptions and exemptions, such an important measure needs to be rooted in a set of values.

This constitutional promise needs to be something that we, as society, make to others about how we will treat them and how, in turn, we expected to be treated.However it is also a promise that the government and parliament make on their own behalf to us and, on our behalf, to everyone else.This is too important to leave to the details of an ordinary bill with all the vagaries and possibilities of amendments, counter-amendments and political compromise.

For these reasons, the Equality Bill needs to be predicated on a set of fundamental principles about what kind of society we want and what standards of treatment we can expect.This requires more than just a purpose clause: the principles should be the basis from which the rest of the bill derives its philosophical context and the reasons for its rules and procedures.

We have concerns about the details of the Green Paper and will work with the government, parliamentarians and others to ensure that we get the best possible set of rules to build a more equal and fair future, but we will also do more.We will draft the principles by which those rules should be judged and we will propose a new vision of how parliament can make law which will really make a difference.We hope that our set of principlesmight provide the first chapter of the Equality Bill and give real substance to that constitutional promise.Alternatively,they might form the basis of an equality guarantee in the proposed bill of rights suggested by the government in the ‘Governance of Britain’ paper.

Whichever approach is taken,we need a set of principles which:

  • create a constitutional promise on equality;
  • are drafted to have some constitutional significance and to ensure that other procedures, rules and law are subject to them;
  • provide a philosophical basis for judicial adjudication; and
  • can be used as a basis from which to derive the rest of the more detailed rules in the new equality act.

Principles into practice

In the proposals for the contents of new equality legislation, the DLR has considered a number of important discrimination law issues, which are addressed in the Green Paper – some with convincing solutions and many others without.

We divide our comments therefore into three parts:

  1. Aspects of the DLR proposals with which the Commission broadly concurs
  2. Aspects of the DLR proposals which the Commission opposes or which we consider need to be further reviewed or developed
  3. Issues the Commission consider should have been addressed or more adequately addressed in the DLR proposals
  1. Aspects of the DLR proposalswith which the Commission broadly concurs
  1. The declared intention to create a clearer, more streamlined legal framework, which is simpler and more effective at tackling disadvantage and discrimination on all of the protected grounds; in doing so to ensure that that existing levels of protection against discriminationmust not be eroded and that British discrimination law must meet the requirements of EC law.

While this is the declared intention of the DLR, many of its detailed proposals do not meet its intention.By proposing the retention of different levels of protection for different grounds and by retaining a large number of specific exceptions, the DLR’s proposals will not achieve a simpler framework.Certain proposals, if enacted in the form set out in the Green Paper for a ‘genuine service requirement’, are likely to erode existing protection.In a number of instances, the DLR has rejected proposals to bring legislation in line with EC law.We discuss these issues in more detail below.

  1. A single public sector equality duty covering all protected grounds: the Commission should retain its statutory enforcement role, without removing the right of the Commission, and others, to challenge non-compliance by judicial review

We fully endorse the proposal for a single equality duty covering all of the protected grounds.We agree that this does not require the same actions to be taken with regard to each ground, but rather actions relevant to eliminating discrimination and promoting equality on each of the grounds.The Commission strongly endorses the aim of having a duty that is focused on results and which avoids unnecessary bureaucracy, but we also recognise that, in order to ensure authorities achieve the desired outcomes, certain processes will need to be carried out.The form of a general and specific duty must be amenable to effective enforcement by the Commission.We need to make sure that, in extending the duty to new grounds, there is no dilution of protection against discrimination or of the obligation to ‘mainstream’ equality, which is explicit in the existing duties.

We include below, under section B, the aspects of the proposals relating to a single equality duty we believe need to be reviewed and further developed, includingthe form of the single equality duty, to whom it should apply and the content of any specific duties.

We agree that the Commission should retain the statutory enforcement role it currently has for the race, disability and gender equality duties.What our specific enforcement powers should be will depend on the final form of the general and any specific equality duties.It should be made clear that our statutory enforcement role would not in any way oust the rights of any affected persons or organisations, or the Commission itself, challenging non-compliance by judicial review.

  1. The private sector should not be subjected to an equality duty equivalent to that which we endorse for the public sector.A ‘light touch’ should not, however, mean no touch

The Commission agrees that self-regulation, rather than externally imposed and enforced equality-related obligations, is more appropriate for private sector organisations.We do not agree that self-regulation should continue to be wholly voluntary.This approach, over more than 30 years, has produced some outstanding exemplars of good practice, but a far larger group of private sector employers who either do not see equality as relevant to them or, more worryingly, who deliberately perpetuate discrimination in recruitment, promotion and dismissals.We set out below under section B our proposals for the private sector.

  1. A positive approach to positive action, allowing the broadest possible scope for measures to achieve substantive equality

With regard to the findings of the Equalities Review, the Commission believesthat bringing in new equality legislation without addressing the urgent need to extend the scope of lawful positive action would make the whole exercise of little value.If a single equality law is to meet the needs of Britain today, it must address the incontrovertible evidence of persistent inequalities that blight the lives of major groups within our society and damage society as a whole.

We recognise the need for accelerated action to overcome entrenched inequalities, and the government’s proposals to make it easier and less restrictive for employers, providers of services and public authorities generally to tackle the barriers that prevent equality.Any positive action measures must be capable of addressing disadvantages which occur as a result of the intersection of two or more protected grounds –such as disadvantage in the labour market faced by Bangladeshi and Pakistani women.