Ministers of the Crown

I beg to move amendment 294, in clause 195, page 138, line 34, at end insert—

‘( ) an order under section [Combined discrimination: dual characteristics](8) (combined discrimination: circumstances where proceedings may not be brought);’.

This amendment would provide for an order made under the new clause that would be inserted by new Clause 26 to be subject to the affirmative procedure in Parliament.

With this it will be convenient to discuss Government new clause 26—Combined discrimination: dual characteristics.

New clause 26 will provide protection from discrimination due to a combination of two protected characteristics—I will call that dual discrimination. It will enable someone who has been treated less favourably because of a combination of two protected characteristics to bring a claim and secure a remedy.

We know that some people may experience discrimination because of a combination of protected characteristics over which they have no control, and that they have no protection in that situation. For example, a black woman or man of a particular religion may face discrimination because of stereotyped attitudes to that combination. It is difficult, complicated and sometimes impossible to get a legal remedy in those cases, because the law requires them to separate out their different characteristics and bring separate claims. That means, for example, a black woman who is discriminated against having to pick what she thinks is the likelier reason. Should she bring a claim for race discrimination and then one for sex discrimination? She might not succeed in either if the employer can show that black men and white women are not treated the same and so on.

The problems of not having the measure have been reasonably well aired. One of the consequences of the diversification of British society and the advances in equality that we have made is that discrimination is becoming subtler. Vulnerable people with a combination of protected characteristics are, in particular, still experiencing discrimination for which there is no remedy. We raised that issue in the consultation document “Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain”, back in 2007.

We asked for evidence of the problem. Many replies highlighted the issue and argued that the law needed to be changed to reflect the fact that people’s identities are multifaceted. We then committed to exploring further the extent to which we could allow multiple discrimination claims to be brought without making the law overly complex or placing an undue burden on those with responsibilities under the law.

The document “Equality Bill: Assessing the Impact of a Multiple Discrimination Provision” presented a potential remedy for dual discrimination. That has been looked at during the past six weeks by interested parties. We also consulted on the specific clause, which is a good thing to have done because it clarified what we were intending to do, particularly for businesses and organisations. The overwhelming response was that businesses and organisations recognised that there was a gap in the law. However, they also expressed concerned that there should not be a disproportionate burden placed on them.

Most businesses recognise that if they comply with existing discrimination legislation and make rational decisions for non-discriminatory reasons, they will not fall foul of the new provision. We know that the majority of businesses will do exactly that.

Costs were an issue for some businesses. They said that they were concerned that risk-averse businesses might spend money unnecessarily to over-comply with the law. Managing perception and minimising unnecessary  over-compliance will be key and the availability of clear, practical guidance at an early stage will be important to ensure that that happens.

We will work with the commission and other relevant organisations, such as Business Link, to prepare and disseminate the guidance in good time. We think it is probably a good idea to make the change to call this dual discrimination, so that we turn a new page and make it clear that the provision is limited to combinations of two. Again, there have been some false hares set running on the extent of the measure, so we are calling it dual discrimination now.

Some Opposition Members have suggested that there should be a provision enabling claims combining an indefinite number of characteristics and that indirect discrimination and harassment should also be included. Let me reiterate what I said in earlier debates, so that we have the whole case about our position present as we debate the new clause and the amendment. We have evidence of people experiencing discrimination because of a combination of two protected characteristics, but there is insufficient evidence of cases involving more than two for us to feel that further regulation is warranted.

The evidence does not suggest that claims of harassment are failing under the existing law where more than one protected characteristic is involved. The harmonisation of the definition of harassment as being unwanted conduct “related to” instead of “on the grounds of” a protected characteristic widens the provision and makes it even more likely that intersectional harassment would be remedied by means of a single-strand claim.

We are also not convinced of the need to include indirect discrimination. There is limited evidence that victims of indirect discrimination are failing to get the protection they deserve. Indirect discrimination involving more than one characteristic—for example, dress codes preventing Muslim women from wearing veils or Sikh men from wearing turbans—is likely to be remedied under current law.

We think that including indirect discrimination within the provision would mean businesses and employers having to consider the impacts of their policies and procedures on every possible combination of protected characteristic, which is not proportionate given the lack of evidence of need.

The new clause is also limited to the relevant protected characteristics listed in subsection (2). That excludes maternity, pregnancy, marriage and civil partnership simply because we are not aware of any evidence of a need. Moreover, in respect of pregnancy and maternity, it would unnecessarily complicate the law to combine that protected characteristic with another for which a comparator is required. There is no need for a comparator, of course, for pregnancy and maternity. Overwhelmingly, there does not appear to be any need.

Increasing the number of protected characteristics that could be combined, including harassment and indirect discrimination, would impose a significant burden on businesses that are simply doing their best to comply with the law. We think that would be disproportionate. We hope that we have an appropriate balance in place. Hon. Members are welcome to debate the matter again now. There is an amendment on how regulation-making power should be used and I will answer that when opportunity arises.

I will not take up too much of the Committee’s time because we had a reasonable debate on this on clause 13. I will reiterate what I said then, which is that the Government were sensible to consult on the draft clause and make it clear that they would respond where there was evidence of a problem.

When introducing the amendment and the new clause, the Minister said a little about responses from consultees. I am not sure whether she already has, but will she confirm whether the Government have published the responses yet? I could not find them on the website, but that might be down to my inability. If they have not been published, it would be helpful if they were.

In the responses sent directly to members of the Committee, there was some evidence to back up what the Minister is now calling dual discrimination. I did not see evidence of any cases involving more than two grounds. On clause 13, we debated whether we should have two or more. At that point, the Minister said that having more than two made for a ridiculous number of possible combinations and was therefore disproportionate. I agree.

The Government have gone about this sensibly. The new clause is exactly as it was consulted upon and the Government have had responses on that as well. That seems a very reasonable approach.

The responses to the consultation sent to members of the Committee show that some business organisations are not entirely happy with the proposal and think there will be an increase, but looking at the impact assessment and the likely number of cases, it does not seem that there is going to be a significant problem.

The bigger problem, which was brought out in the British Chambers of Commerce response and has been touched on already by the Minister, is of employers gold-plating their practices. It might be not a real problem, but a matter of how people respond to it. The Minister is right that that can probably be offset by the quality of the guidance received from the Equality and Human Rights Commission, making it clear to employers what they do and do not have to do to comply with the dual discrimination part of the law. If that is made crystal clear to businesses and they act proportionately, the costs and burdens will be as in the impact assessment and therefore themselves proportionate. The Minister said that very clearly and I think the EHRC will take it on board. If it does, this should be relatively trouble-free.

I welcome new clause 26. It is helpful that we have moved on to dual discrimination. In a sense, bringing together the different bodies as the EHRC mirrors the fact that we want to bring together all these issues. People suffer not necessarily because they have one protected characteristic, but because they have many. I am surprised that there was no or little evidence of more than two types of discrimination taking place. If there was none, I shall follow the lesson the Minister has given me, which is that I must not think up things that do not exist, but deal with real harm. However, I would like to keep this point open in the minds of members of the Committee because if there are examples when the legislation comes into force of it not working on the basis of dual discrimination, we will have to look at it again. For now, this is a great step forward and I am very happy with it.

I, too, welcome the measure and the way the Solicitor-General explained it. There is no attempt in the Committee to subvert it, nor any belief that there is no problem. There is a problem, which I often think can be encapsulated by the term “Bangladeshi women”, although it would be demeaning to suggest that that is the only problem. As the Solicitor-General said, there are many such cases because we live in a complex society that has overlapping discriminations.

Perhaps I did not pay enough attention, but I would like it to be made clearer what the evidence base must be for such a claim. I think that it is right to confine the measure to dual discrimination—that is, two protected characteristics that co-exist and lead to discrimination. In building up a case that such discrimination has taken place, it is not clear whether the two characteristics should be looked at together, cumulatively or alongside each other. That might become clear when we receive EHRC advice.

There is a sense in which one does not want a “speak your weight” machine, which says that there was 15 per cent. discrimination in relation to race and 7 per cent. in relation to gender, and that that is not sufficient to make a critical case.

The lacuna that existed in the law was that it was impossible to look at the two factors together and they had to be treated separately, even though they were clearly not separate. There are still some difficulties with looking at them together and I would like the Solicitor-General to reflect on that for the Committee.

When trying to establish the reasonableness and credibility of an organisation’s employment practices, the organisation might produce targeted audits. I am talking about larger employers that have human resources departments and so on. It might have done a gender pay audit and at a different time, using a different reference frame, it might have done a study of its recruitment practices in relation to ethnic minority representation. When it is trying to build up a defence, which companies will do in some cases, it might adduce those two pieces of evidence even though they do not fit together exactly.

Just as the problem reflects a frame that is too narrow, many of the practices undertaken by companies are themselves traditionally expressed by one protected characteristic or another. They are dealt with sequentially, rather than together. Perhaps that is the only way to express them coherently. Clearly, if an employer picked on somebody because of two protected characteristics, nobody in the Committee would have any time for that. However, I am concerned that in trying to meet this problem we might have difficulty in establishing a plausible and successful case at tribunal.

I have just four things to add. First, the hon. Member for Forest of Dean asked about publishing the responses. In the summer, we will publish a summary of the responses and an updated impact assessment based on the consultation. He will get that information pretty soon. We will monitor how the measure operates after it comes into effect to see whether any evidence of further need emerges; I think that is the point the hon. Member for Hornsey and Wood Green made. However, we have not seen any such evidence yet, as I have said.

I am not entirely sure that I followed the point made by the hon. Member for Daventry about proportions. Perhaps the classic situation would be a black woman being treated less favourably than a white woman and also less favourably than a black man. With that kind of combination, we would not really need to allocate which was which; indeed, it might not be possible.

I should add one point finally and I do so with an apology. I have muddled amendment 299, which is yet to be debated and is a Liberal Democrat amendment, with amendment 294, which is a Government amendment. I should address amendment 294 briefly, if I may, Mr. Benton. I am sure that, if anyone had a point to make about amendment 294 in further debate, you would show the discretion to allow it. However, I cannot imagine that there will be such a point.

Under subsections (6) and (7) of the clause, we have provided that, where the discrimination is subject to the exclusive jurisdiction of a particular court, that jurisdiction is limited to one of the protected characteristics in the combination. Then the claim cannot be brought under the clause. For instance, that would relate to claims of disability discrimination in education, which would go exclusively to a specialist tribunal.

Under subsection (8) of the clause, there is a power to specify other circumstances in which claims are excluded. That is to allow us to exclude classes of claim or to specify the evidential standard further, if it is necessary. For instance, that could be invoked if it is found that courts or tribunals reach unintended conclusions or have any difficulty with practical implementation. Therefore, amendment 294 amends clause 195 to ensure that the affirmative procedure will apply to any exercise of the power to which I have just alluded.

I cannot imagine that amendment 294 will give rise to any further debate, but I apologise for missing it out in the first place.

Amendment 294 agreed to.

I beg to move amendment 299, in clause 195, page 138, line 39, at end insert—

‘(ee) regulations under Clause 145 (power to specify public authorities) if they do anything other than add bodies to the list under Schedule 19’.

An affirmative resolution of both Houses is required if the list of public authorities is narrowed.

I do not know whether the Minister was tempted to deal with this amendment in the previous debate, but it is a simple request to the Government to ensure that any proposal by a future Government to remove a list of public authorities from the list of public authorities affected by the positive duty would require a debate in both Houses. Removing an organisation from such a list is different from merely adding new organisations, for example, as they are created.

I believe that there is precedent in other legislation for recognising the distinction between removing such an important obligation and adding another organisation to the list of organisations bound by that obligation. Will the Minister consider that point?

I simply add that it would seem likely that such an organisation would be being removed in circumstances of some heat or controversy. Otherwise,  how would the Government have got round to thinking of removing them? I think that that reinforces the point that the hon. Gentleman is making.

Indeed. On that basis, I look forward to hearing the Minister’s response.

Actually, we envisage using that power only when an organisation or authority does not exist. For instance, we had to replace the entry for the London Fire and Emergency Planning Authority with an entry for the Greater London Fire and Emergency Planning Authority. That is really all that we envisage the power being used for. It would clog up parliamentary time in a fairly unhelpful way to require affirmative procedure for that type of change.

Should a future Government seek to emasculate the public sector duty, by removing wholesale lots of bodies from schedule 19, people would then pray against the relevant regulations to prevent that from happening and expose the issue. Given the overall ambience in the Committee, it does not seem as if anybody will do that anyway.

I admire the Minister’s faith in future Governments. She said that the amendment is clearly not intended to apply to organisations that no longer exist. If that point needs to be pursued, their lordships are good at that, so when the Joint Committee on Statutory Instruments gets going, it might wish to consider whether there is room for a narrower amendment to deal with the mischief—although it might never occur—of the wholesale removal of an existing authority. Clearly, the negative procedure exists and one could pray against, but that is not the same as draft regulations having to be affirmed—otherwise, we would not have that procedure. However, given what she has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 195, as amended, ordered to stand part of the Bill.

Clauses 196 to 198 ordered to stand part of the Bill.

Schedules 26 and 27 agreed to.