Equality Bill reintroduced

The government has reintroduced the Equality Bill, establishing a Commission for Equality and Human Rights.

The Bill was introduced in the House of Lords and received a second reading on 15 June 2005. It also expands the definition of "religion" or "belief" in the Employment Equality (Religion or Belief) Regulations; extends the prohibition on discrimination on grounds of religion or belief to the provision of goods, facilities and services; and creates a new positive duty on public bodies to promote equality of opportunity between men and women. The Bill is substantially the same as that which was introduced in the House of Commons and received a second reading on 5 April 2005, but which ran out of time because of the general election.

This article highlights some of the main points of the Bill. EOR will be tracking its progress as it goes through parliament.

CEHR

The Commission for Equality and Human Rights (CEHR) will take over the functions of the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC). The CEHR will have responsibility in respect of discrimination on grounds of religion or belief, sexual orientation and age. It will also have responsibility for the promotion of human rights.

The CEHR will be established in October 2007 for all areas except those for which the CRE is responsible. This timing means that nearly four years will have elapsed from when the 2003 Regulations came into force before there will be a statutory agency able to assist and support those discriminated against on grounds of religion or belief, or sexual orientation. Similarly, the new age discrimination rights will be in force for a year before any enforcement body will take responsibility. The government, however, has so far resisted any suggestions that interim arrangements should be made, such as empowering one or more of the existing enforcement agencies to assist claimants.

The CRE will remain independent until April 2009, when its responsibilities will transfer to the CEHR. The delay is at the request of the CRE, which took the view that "the timing for merging the CRE into a single equality body was not appropriate, given the rise in Islamophobia, the increased activity of the Far Right, and the increasing lack of integration within our communities."

Fundamental duty

The CEHR is given a rather grand mission, described as a "fundamental duty". Clause 3 requires it to exercise its functions:

"with a view to the creation of a society in which -

(a) people's ability to achieve their potential is not limited by prejudice or discrimination,

(b) there is respect for and protection of each individual's human rights,

(c) there is respect for the dignity and worth of each individual,

(d) each individual has an equal opportunity to participate in society, and

(e) there is mutual respect between communities based on understanding and valuing of diversity and on shared respect for equality and human rights."

"Diversity" is defined by the Bill as meaning "the fact that individuals are different", and the CEHR has a specific duty to "promote understanding of the importance of equality and diversity" and "encourage good practice in relation to equality and diversity".

Communities

The CEHR is given the duty to promote understanding of the importance of good relations and encourage good relations between different communities, and between communities and others. It is also to "work towards the elimination of prejudice against, hatred of and hostility towards communities", and to achieve "the elimination of the involuntary isolation of communities."

"Community" is defined as a group or class of persons who share a common attribute in respect of age, gender, reassignment of gender, race, religion or belief, and sexual orientation.

Disability

Notably, the definition does not include disability. That is because specific additional duties for the CEHR are laid down in respect of the treatment of disabled people. These require the CEHR to "promote understanding of the importance of the fair treatment of disabled persons", "encourage good practice in the treatment of disabled persons", "work towards the elimination of prejudice against, hatred of and hostility towards disabled persons", and "work towards the elimination of the involuntary isolation of disabled persons".

The explanatory note says that the first of these duties will address situations "outside the scope of the DDA" where behaviour towards disabled people treats them less favourably than non-disabled people, "often subconsciously and resulting from a lack of awareness and understanding of disability". The following illustration is then given: "It could cover, for example, the situation of a child with learning difficulties being picked on by other children in a local park, or a British Sign Language user being asked to leave a pub because people consider his gesturing as he signs to be aggressive."

The latter example seems singularly inappropriate for behaviour "outside the scope of the DDA". The DRC's Part 3 Code of Practice on Rights of Access: Goods, Facilities and Premises (EOR 101) uses virtually the same scenario as an example of unlawful discrimination under the Act: "A group of deaf people who use British Sign Language (BSL) is refused entry to a disco. The doorman assumes that other customers might mistake communication using BSL as threatening gestures. This refusal of service is for a reason related to disability. It is likely to be unlawful even though the disco would have refused entry to any person who made similar gestures."

Enforcement powers

The CEHR's investigative and enforcement powers are broadly modelled on the existing powers of the DRC, as set out in the Disability Rights Commission Act 1999.

As under that statute, the CEHR will be able to carry out investigations and require a person who has committed an unlawful act to "prepare an action plan for the purpose of avoiding repetition or continuation of the unlawful act".

The CEHR will be given power to assist an individual who has become party to legal proceedings relating, wholly or partly, to the equality enactments. Where proceedings relate partly to a provision of the equality enactments and partly to other matters, assistance may be given in respect of any aspect of the proceedings while any provision of the equality enactments continues to be at issue, but once there is no longer a discrimination issue, assistance may not be continued. This means that where someone claims that they have been unfairly dismissed and discriminated against on grounds of race, the CEHR will be able to pay for legal representation, for example. If the race discriminated complaint is settled during the proceedings, however, then no further assistance can be given.

The CEHR, unlike the existing statutory commissions, is to be given an express capacity to "intervene in legal proceedings ... if it appears to the commission that the proceedings are relevant to a matter in connection with which the commission has a function".

The CEHR will also have new powers to assess a public authority's compliance with the public sector duties for disability, race and gender. This assessment could lead to recommendations for improvement, or other specified outcomes, that will ensure the body complies with its specific duties. In addition, the CEHR will be able to issue compliance notices where a body has failed to comply with a duty.

Human rights

The Bill requires the CEHR to "promote understanding of the importance of human rights", "encourage good practice in relation to human rights", "promote awareness, understanding and protection of human rights", and "encourage public authorities to comply with s.6 of the Human Rights Act 1998".

The government's explanatory note points out that in relation to the more general duties under this clause, "the CEHR will not be limited to dealing with public authorities. It will, for example, also be able to provide encouragement to the voluntary and commercial sectors to adopt appropriate human rights standards as the basis of the relationship with their clients and customers in the provision of their services."

The commission's human rights remit also includes the conduct of general inquiries, and third-party intervention in Human Rights Act cases. However, as noted above, the CEHR has no legal powers to bring standalone Human Rights Act cases. Nor will it be able to investigate human rights abuses.

Structure

The CEHR will have between 10 and 15 commissioners, of whom one must be (or have been) a disabled person.

The CEHR will be able to establish advisory or decision-making committees, which can be made up of commissioners, staff and external members. Decision-making committees can have any function delegated to them.

Special provisions have also been made for a disability committee as a decision-making committee. The Bill provides that the commission's functions with regards to equality and diversity are to be delegated to this committee, in so far as they relate to disability matters, for at least five years, when its continuation will be reviewed. The disability committee will be empowered to give advice and information, issue codes of practice, offer legal assistance and conciliation as appropriate, institute judicial reviews and monitor the law.

The DRC has welcomed these provisions as "vital to disabled people's confidence in the ability of the CEHR to work effectively to eradicate the widespread discrimination and exclusion they face".

Religious discrimination

The Equality Bill prohibits discrimination on grounds of religion or belief in the provision of goods, facilities and services, education, the use and disposal of premises and the exercise of public functions. As the then Secretary of State for Trade and Industry, Patricia Hewitt, explained when the previous Bill was debated on 5 April 2005, this is intended to "address the imbalance that has emerged from case law under the Race Relations Act 1976. People of the Jewish faith and in the Sikh community are afforded protection in certain areas of the law as ethnic groups, while members of other religions and faiths are not. For example, a Jew or a Sikh who is refused service in a restaurant or a shop can challenge that discrimination through the legal system, but members of any other religion or belief who receive the same unfair treatment cannot."

From the standpoint of most EOR readers, however, the most significant clause in this part of the Bill concerns the definition of religion and belief.

New definition of religion and belief

The Bill contains a new definition of "religion" and "belief" for the purposes of discrimination by service providers and that same extended definition will replace the existing definition in the Employment Equality (Religion or Belief) Regulations 2003.

Those Regulations (EOR 119) specify that "religion or belief" means: "any religion, religious belief, or similar philosophical belief". The new definition substitutes the following:

"In these Regulations -

(a) 'religion' means any religion,

(b) 'belief' means any religious or philosophical belief,

(c) a reference to religion includes a reference to lack of religion, and

(d) a reference to belief includes a reference to lack of belief."

There are two notable changes from the existing definition. First, the requirement that a philosophical belief must be "similar" to a religious belief has been removed. The DTI explanatory notes to the 2003 Regulations said that the phrase "similar philosophical belief" "does not include any philosophical or political belief unless it is similar to a religious belief". However, the Framework Employment Directive requires member states to make it unlawful to discriminate on grounds of "religion or belief", and does not use the word "similar".

In 2003, the DTI took the view that examples such as "atheism" and "humanism" are beliefs that would fall within the existing Regulations; whereas "examples of beliefs which generally do not are support for a political party, support for a football team." Support for a football team - however fanatical - is still not regarded as a "philosophical belief". But the change in the definition may bring within the scope of the protection some political beliefs, especially those that shape a person's way of life or perception of the world. Pacifism and veganism are obvious examples but, depending on the facts, discrimination against someone because they are an animal rights activist or an ardent hunt supporter might also now fall within the scope of the legislation.

Lack of belief covered

The second change is that the definition of "religion" and "belief" will now explicitly specify that "a reference to religion includes a reference to lack of religion" and "a reference to belief includes a reference to lack of belief".

The Employment Equality (Religion or Belief) Regulations 2003 made no reference to lack of religion or lack of belief, although the DTI's explanatory notes assert that this is also covered, and the same point was made when the Regulations were being debated in Parliament. The DTI said that: "references to 'religious belief'... include reference to an individual's belief structure involving the absence of particular beliefs because these are two sides of the same coin … For example, if a Christian employer refuses an individual a job because he is not Christian, regardless of whether he is Muslim, Hindu, atheist (etc), that would be direct discrimination on grounds of the individual's religious belief, which can be described as 'non-Christian'. It is not necessary to identify the individual as an atheist or a Hindu for the purposes of the Regulations in such circumstances if he can be identified as a 'non-Christian'. The same is true of persons who might describe themselves as 'unconcerned' by religious beliefs, or 'unsure' of them."

We speculated at the time ("Discrimination: The New Law, Harvey Special Reports Series") that the absence of an explicit reference to absence of belief was an oversight, that could only be rectified by the Regulations being withdrawn, which the government did not want to do. Whatever the reason, the Regulations are now to be amended. As a result, they will cover someone who is discriminated against because they do not share the discriminator's religious views.

Definition of discrimination

Direct and indirect discrimination are defined somewhat differently than in other statutes. Direct discrimination is defined as follows:

"(1) A person ('A') discriminates against another ('B') for the purposes of this part if on grounds of religion or belief A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

(2) In subsection (1) the reference to religion or belief is a reference to -

(a) a religion or belief of B or of any other person except A, and

(b) a religion or belief to which B or any other person except A is thought to belong or subscribe."

Subsection (1) emphasises that for the purposes of the comparison that has to be made, the relevant circumstances in each case must not be materially different. It accords with the general trend in both discrimination legislation and case law (see the House of Lords' decision in ex parte Carson). However, this is largely a policy decision rather than a legal one. The definition would work perfectly well without the additional requirement that the relevant circumstances must be the same. The definition used by the government means that there will be no remedy for someone who can show that the reason they were treated less favourably than others by a service provider was because of their religion or belief, if they cannot prove additionally that the circumstances in which their comparator was more favourably treated were not materially different.

Subsection (2)(a) makes clear that direct discrimination can occur even if it is not B's religion or belief but that of another person that constitutes the grounds for discrimination. As the explanatory note puts it: "it would apply if a shopkeeper refuses to serve a customer, not because of the customer's religion, but because of the religion of his friend who is in the shop with him. However, it does not apply where the less favourable treatment occurs solely on ground of A's religion or belief - for example, where A feels motivated to take particular action because of what his religion or belief requires."

Subsection (2)(b) covers perceived discrimination, a concept the government has consistently resisted incorporating in disability discrimination legislation. In this context, it makes clear that discrimination can occur even if A is mistaken as to B's religion, ie if B is not of the religion presumed by A.

Indirect discrimination is defined as follows:

"(3) A person ('A') discriminates against another ('B') for the purposes of this part if A applies to B a requirement, condition or practice -

(a) which he applies or would apply equally to persons not of B's religion or belief,

(b) which puts persons of B's religion or belief at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),

(c) which puts B at a disadvantage compared to some or all persons who are not of his religion or belief (where there is no material difference in the relevant circumstances), and

(d) which A cannot reasonably justify by reference to matters other than B's religion or belief."

Again, this somewhat of a hybrid definition, using formulations that are not found in other discrimination statutes: "requirement, condition or practice"; "disadvantage compared to some or all others"; and "reasonably justify". The definition in the employment provisions of the 2003 Regulations is "provision, criterion or practice", the same definition as used in the amended Race Relations Act. The basis for the difference in wording is not explained by the government.

The Bill also defines harassment on the grounds of religion or belief for the purposes of discrimination as regards service provision. The definition here is essentially the same as that used in the employment provisions of the religion or belief Regulations.

Sex discrimination public sector duty

The Equality Bill prohibits sex discrimination in the exercise of public functions and creates a public sector duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity between men and women. This fulfils a commitment made by the government in its 1999 Equality Statement.

The Equality Bill's provisions in this respect closely parallel the duties that were imposed on public authorities by the Race Relations (Amendment) Act 2000 (EOR 95) and by the Disability Discrimination Act 2005 (EOR 141). There are exceptions for services that are provided separately, or for one sex only, when the circumstances or need are such that it would not be reasonably practicable to do otherwise.

The public sector gender duty is likely to come into effect in December 2006.