Citizens Advice is pleased to have the opportunity to respond to this consultation on proposals for outlawing discrimination on sexual orientation grounds. Citizens Advice Bureaux (CABx) across England, Wales and Northern Ireland received 1,203,929 enquiries concerning consumer and utility issues, in 2004/2005.
Citizens Advice is the UK European Consumer Centre (ECC) and are concerned to see discrimination tackled across the whole EU membership.
General comments
Support for the proposed legislation
Citizens Advice fully supports the aim of the proposed legislation: that the provision of goods, services, facilities and the exercise of public functions should be equally available to all consumers. We see the proposed regulations to outlaw sexual orientation discrimination in the provision of goods and services as an important and essential measure.
We look forwards to the introduction of regulations in October 2006 and see this as a natural extension of those rights provided in the Civil Partnership Act 2004.
Equal protection for all
We also support the intention for the same level of legal protection for all groups who may be subject to discrimination and are keen that the legislation proposed in this consultation matches, where applicable, with that for sex discrimination, disability discrimination, race discrimination and discrimination on the grounds of religion or belief.
We also see the need for the Commission for Equalities and Human Rights to have equal powers across the equalities agenda and to be properly resourced to tackle enforcement, to assist those seeking individual redress and to take the lead in a programme of education.
Scope of the proposed regulations
In addition to those areas of potential discrimination in the goods and services field that have been raised in the consultation, we believe there is a potential need to guard against discrimination on the wider field of household makeup. For example, definitions for family insurance and family reductions such as rail cards and entry tickets for leisure activities should not exclude same sex parents from benefiting.
CAB evidence
We believe that our clients often fail to seek advice about many of the areas of discrimination in the consultation due to a tacit acceptance of the status quo. For example, a same sex couple may ask a friend or look at the gay press to see which health club would welcome their membership, rather than challenging any local club to allow their participation in special offers on joint membership that could leave the couple to deal with rejection. Our response to the questions in this consultation has not, therefore, included case examples.
Responses to specific questions
Q1: Do you agree that the new sexual orientation regulations should apply to goods, facilities and services?
Citizens Advice believes that it is essential that these regulations apply to all areas of everyday life experienced by consumers. If goods, services and facilities are not covered there will be scope for companies avoiding these anti discrimination measures.
Q2: Should the concept of goods, facilities and services have the same scope as in other equality enactments, in particular Part 2 of the Equality Act 2006?
Citizens Advice feels strongly that the concept of goods, facilities and services should have same scope across the equalities enactments. We feel that this is essential in order for the Commission for Equalities and Human Rights to be able to work across equalities. Varying the scope would mean that the Commission may not be able to tackle issues of discrimination common to the range of people protected under the various enactments. It will also allow the potential for one set of education and training materials to be used for those providing goods, services and facilities and the general public on discrimination. Further it should help the development of universally applicable case law.
We are not aware of any problems with the description for goods, facilities and services in the Equalities Act, which appears to be wide enough to capture all consumer transactions the proposed regulations are designed to cover.
Q3: Do you agree that we should provide an exemption from the prohibition on sexual orientation discrimination so that services to meet a specific and justified need can be provided separately to different groups on the basis of their sexual orientation? What specific activities would such an exception need to apply to?
We agree with the approach taken in paragraphs 3.8 – 3.14. We agree the need for businesses and services tailored for the lesbian, gay and bisexual (LGB) community to also embrace non LGB people rather than being obliged to provide new services for these heterosexual people. Further, the defence of reasonable action to avoid disruption of the service or facility being provided seems very sensible. We also agree that whilst care is essential in defining where and when an exemption should apply, there are instances where the provision of bespoke services for the LGB community may need to be provided separately, in order to be effective, efficient and comfortable to use.
We would expect that there might be a need for limited exemptions in the field of health and social services provisions but think that these should be regularly reviewed. The need for exemptions may change over time, as the diverse society objectives of the Equalities Act develop.
An exemption may currently be needed for refuges for people who have experienced domestic violence where the client group is likely to have particular fears for safety associated with people’s gender. We fully appreciate that partners in LGB relationships are amongst those who are subjected to domestic violence and that both men and women in heterosexual relationships can experience domestic violence. However, refuges need to take special care to protect those they house who may feel unable to live in close proximity to or be required to mix with those they perceive as a potential threat.
Q4: Do you agree that premises should be covered by the sexual orientation regulations?
We agree that premises must be covered in these regulations and agree that accommodation is a cause of discrimination, as described in the consultation.
Q5: Do you agree that an exemption should be provided for selling or letting of private dwellings as described in this consultation paper?
As we have said earlier in this response, we are keen that the range of equalities legislation provides the same level of protection. However we do have some concerns about the exemption for selling and letting as described in paragraph 3.16. We would be concerned if this exemption resulted in an existing tenant losing their home, for example if accommodation were rented by a partner in a heterosexual couple who then split up, where the tenant remaining in the property then became a partner in a same sex relationship. Similarly, if a same sex partner could not be invited to stay the night where this would be allowed for a heterosexual partner, perhaps where the tenant had not come out as being a LGB person when the tenancy was taken up.
We are not sure how this would apply to a sale of a dwelling, unless it were made a formal written condition of the sale and of any future sale.
We also assume that this part of the regulations would work both ways, so that a LGB home owner could also decide not to accept tenants or purchasers who are heterosexual.
Q6: Do you agree that private members clubs should be included in the sexual orientation regulations?
We agree the equalities enactments should be the same, provided that the rules for private members clubs and associations are not proved to be an easy way of avoiding the equalities agenda.
Q7: What is your view on our proposal that both private members clubs and associations should be permitted to include having a particular sexual orientation as a membership criterion, but only where this criterion is explicitly connected to the purpose for which the club has been established?
We accept the reasoning in the consultation on this issue. Please also see our response to Q6 above.
Q8: Do you agree that the new sexual orientation regulations should apply to public functions as well as to goods, facilities and services? Do you think that any specific additional exceptions might be needed from a prohibition on sexual orientation discrimination in the exercise of public functions?
We agree that the new sexual orientation regulations should apply to public functions and see this as an important inclusion. For example, we would expect the regulations to be capable of ensuring that LGB people experiencing domestic violence receive the same level of help, concern and law enforcement from the police force as those in a heterosexual relationship.
On the issue of specific additional exceptions we have a concern in relation to the judiciary. We appreciate that there has been a concordat between government and the judiciary concerning independence and a programme to increase diversity in the judiciary. We welcome the objective to better reflect the whole population in the judiciary. However, the constitutional exemption of the judiciary from comprehensive anti discrimination legislation should be reviewed, in order to properly test whether this is still appropriate.
Q9: Do you agree that schools should be covered by the sexual orientation regulations? Citizens Advice would be very concerned if the sexual orientation regulations did not cover both schools and the activities of and in schools. Schools are both central to a local community and the providers of a facility where all eligible children are required to attend. What happens in schools will influence attitudes of pupils and of the wider community.
Many school also allow groups to meet or hold functions or classes in their premises and the LGB population should expect the same provisions as others in the community.
Q10: Are there any circumstances in which you consider that schools, or a part of the schools sector, should be exempted from the regulations?
We believe that exemptions for schools or school related activity or facilities would be very likely to act against the objectives of these new regulations because they are so central to everyday life for pupils, their families and friends and others associated with them or with the facilities they offer.
Q11: Are there any areas of activity for schools for which you consider special provision needs to be made?
We accept that religious schools will wish to follow the teachings of that religion. Religious belief structures have diverse views about sexuality. Whilst we accept that this is the case, any educational practice that might incite hatred should be challenged through the enforcement provisions detailed in chapter 5.
Q12: Do you consider that an exemption should be provided from the regulations for some of the activities of religious organisations?
We see the logic of the arguments made in the consultation at paragraphs 3.32 – 3.36 in support of the proposed approach to religious organisations and their activities. We particularly agree that where a service is provided to parts of the community that are of a social or welfare nature, or where these are contracted by a public authority, the regulations must apply fully.
Q13: Do you agree that these exemptions should be restricted to activities that are primarily doctrinal? If there are any other activities that you consider should be covered by an exemption, what are they and why do you consider they need to be exempted?
We believe that exemptions should be restricted to doctrinal activities. For all activities that are available to the general public and where non religious facilities, such as hire of halls, there should be no exemption. Otherwise we believe that there will be scope to avoid the new regulations.
Q14: Do you agree that an exception should be provided for charities that provide services specifically to people because of/according to their sexual orientation?
We agree with the exception for charities and benevolent organisations where beneficiary groups are identified by sexual orientation and a good reason can be shown for this. But the exemption should be in the public domain so that it can be challenged, to avoid any abuse of this provision and in order to provide a fair playing field.
Q15: Do you agree that the sexual orientation regulations should include direct and indirect discrimination as well as victimisation? Are there any particular considerations or situations that should be taken into account in how such provisions are drafted?
Citizens Advice is pleased that direct and indirect discrimination as well as victimisation are proposed for inclusion in the new regulations. Without all three provisions we believe that the objectives of the legislation will not be achieved and that their message would be confusing, in terms of when it did and did not apply.
In terms of the drafting for this part of the regulations, to help address potential situations where indirect discrimination might be found, we see a particular need for advice and information to be included in the guidance material that is proposed. We agree that indirect discrimination is not always intentional. It may happen because of a simple failure to consider issues from the viewpoint of all sexual orientations. Whilst the regulations are new there may be a need for enforcement to be along the lines of advice rather than legal action. However, we are concerned that the overall aim is to develop one approach across the equalities enactments.
Q16: Do you agree that discriminatory practice should be included in the scope of the sexual orientation regulations?
Citizens Advice appreciates the need for a balance between protecting individuals from acts that violate their dignity and human rights of self-expression and supports the proposal to look at this across the equalities legislation, rather than including harassment as an offence in the sexual orientation discrimination regulations. We will be interested to see the consultation proposed for this summer.
We agree with the proposal to make the adoption or practice of discriminatory practices illegal and agree that local knowledge is likely to mean that there is never a victim of such discrimination because the practice is well known, so LGB people would avoid that service or facility. We are pleased that the CEHR will exercise enforcement powers in relation to prohibited discriminatory practices but would also like to see positive encouragement for these practices to be reported, so that they can be tackled.
Q17: Do you agree that discriminatory advertising should be included in the scope of the sexual orientation regulations?
We agree that it is important to include an offence in the regulations in respect of discriminatory advertising in relation to sexual orientation and that this is essential if the proposed protection is to work. We also agree that an advertiser should have a defence of having relied on a statement from the person placing the advertisement but feel that the publisher of the advertisement should be under a duty to take reasonable steps to avoid publishing a discriminatory advertisement.
We see the value of the CEHR taking action against discriminatory advertising but wonder if it should be the sole preserve of the CEHR. There may be potential value in allowing individuals who want to stop discriminatory advertising, where it has affected them directly, to take action in the courts, perhaps as a common enforcer so that CEHR would be the main enforcer but there would be another route if they did not act. Furthermore, Citizens Advice believes that it is vital that the CEHR should encourage the public to report discriminatory advertising to them.
Q18: Do you agree that instructions to discriminate should be covered by the sexual orientation regulations?
We agree that it should be an offence to give instructions to discriminate on the grounds of sexual orientation and to follow these instructions. Without this employees would be the sole perpetrators of discrimination that is the policy of their employer.
Q19: Do you agree that validity of contracts should be covered by the sexual orientation regulations?
Citizens Advice fully supports the proposal to include validity of contracts in the sexual orientation regulations and sees this as an important protection. Such contract terms should be invalid, as they are in other equalities enactments.
Q20: Do you agree that the enforcement provisions for the sexual orientation regulations should match those for the other equality enactments?
We agree that these regulations should match those for other equalities enactments in respect of enforcement. It will be important that individuals are able to pursue a case where they are the victim of discrimination concerning sexual orientation, using the county or sheriff’s court. We also agree the time limit should be six months from the offence and see the ability of the courts to waive this in appropriate circumstances as a valuable additional protection.
Q21: Do you have any comments on the Government’s plans for how the sexual orientation regulations will be enforced and supported by the CEHR
We support the case for a unitary commission. We believe that the CEHR role should include monitoring and enforcement as well as education and support for individuals who may need advice about whether the legislation has been breached. We believe that the power to investigate and to seek injunctions to stop discrimination will be of great value. We also very much welcome the ability for the CEHR to provide for alternative dispute resolution (ADR). We are aware that few cases are taken on disability discrimination by individuals and see ADR as hugely valuable as an alternative.
We are pleased that there are plans for guidance and a code of practice to be published. Our advisers have found the guidance on disability discrimination a valuable asset in identifying breaches of disability legislation and in discussing breaches with local businesses to help them improve their practices. A particular value of that guidance is the inclusion of a range of examples, particularly where the issue of whether or not something is acceptable is explored.
Social Policy contact: Susan Marks susan.marks@citizensadvice.org.uk
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