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Discrimination Law Review  A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain

30 March 2010

Introduction

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The CAB service and equality.

The CAB service is a network of 430 independent Citizens Advice Bureaux that provide free, independent and impartial advice from more than 3,000 locations in England Wales and Northern Ireland.  Bureaux currently handle over 32,000 discrimination advice enquiries every year.  The majority of these concern sex, disability and race discrimination, although the numbers of discrimination enquiries relating to age, religion and belief, and sexual orientation are growing.  Discrimination cases handled by the national Citizens Advice specialist support equalities and employment rights team have shown a rise from 518 cases in 2005 to 622 cases in 2006, a 20% increase.

The Citizens Advice service also has a strong track record in providing services to disadvantaged communities.  In parts of London, some 70 per cent of bureaux’ clients are from black and minority ethnic groups; in areas such as Birmingham, Coventry and Oldham the figure is over 40 per cent.  In 2005/06, bureaux dealt with over 500,000 enquiries about disability benefits.  Around 100 bureaux run projects to provide advice to people with mental health problems, and over 100 are racist incident reporting centres.

Equality is a fundamental principle of the CAB service.  The CAB service is independent and provides free, confidential and impartial advice to anybody regardless of race, gender, disability, sexual orientation, religion, age or nationality.  It recognises the positive value of diversity, promotes equality, and challenges discrimination.  CAB services and campaigns address the many reasons why individuals or groups may be discriminated against or excluded, for example poverty, rural isolation, race, ethnicity, disability, mental health, sexual orientation, age, religion, nationality, and gender.

The Review

Citizens Advice welcomes the opportunity to respond to the discrimination law review Green Paper.  This is an opportunity to tackle the inadequacies of the current framework, to build on the Government’s legislative achievements in extending rights to vulnerable groups, to equip the new Commission on Equality and Human Rights to operate effectively and to provide greater coherence to the piecemeal development of anti-discrimination law. Citizens Advice were the first national consumer body to call for a single Commission and a single Equality Law.  We therefore endorse the fundamental aims of the review to create a clearer, more effective and streamlined equality legislation framework which encourages compliance and produces better outcomes for those who experience disadvantage. In particular

  • The codification of prohibited grounds and the harmonised approach to exceptions and justifications.
  • The move towards a single public sector equality duty
  • The proposal for National Government to set strategic equality objectives
  • The emphasis on positive action to improve workforce representation from different groups
  • The proposal that Ombudsman may have a role to play in dispute resolution concerning discrimination issues.

The importance of a Single Equality Act

We agree with the Select Committee’s conclusion that we have a once in a lifetime opportunity to get legal framework and policy objectives right.  Despite legislative activity over the past thirty years, and many of this Government’s achievements such as civil partnerships, public sector duties and community cohesion initiatives, inequality remains deeply embedded in our society. Indeed, on current rates of progress, it will take until 2085 for the gender pay gap to be closed and until 2105 to close the gap in ethnic employment rates.  With increasing social and workforce diversity, it is vital that we take robust action to support social mobility and life chances for all groups; however this will require a major step change in public policy.  There are many concerning patterns of inequality that need to be addressed:-

  • Poverty.  Recent Joseph Rowntree research has shown that the poverty rate for Britain’s minority ethnic groups is 40%, double the 20% amongst white British people, and that forms of slavery are still common in the UK economy, including under-16s coerced into prostitution, and violent, illegal practices in jobs markets such as crop picking, factory work, nursing and catering.
  • Justice.  A recent parliamentary report showed how young black people are over-represented in the criminal justice system, representing 2.7 per cent of the population aged 10–17, but 8.5 per cent of those of that age group arrested in England and Wales.  As a group, they are more likely to be stopped and searched by the police, less likely to get unconditional bail, more likely to be remanded in custody and likely to receive more punitive sentences than white young offenders.
  • Vulnerability.  There is a high level of vulnerability amongst the older population, about 1.2 million older people are excluded on three or more indicators of social exclusion, with one in three people over 80 being excluded from basic services.  Around 16% of pensioners are ‘persistently poor’ and 70% of people aged 65 or over reportedly have a long-standing illness.  A quarter of those over 80 have a ‘serious disability’.  Of those over 90 years old, 27% need residential or nursing home care.
  • Access.  Seven in ten (73%) disabled people with mobility and sensory impairments in Great Britain say that they have difficulty accessing goods and services.
  • Parity.  The average full-time, hourly wage for a man is £14.08, and for woman is £11.67.  The hourly gender pay gap for women is 17%, but for part time women it is 38%, and omen’s average income in retirement is only 57% of the average for men.  The average net weekly earnings of Bangladeshi men is half that of white men.  Disabled people are 30% more likely to be out of work compared to non-disabled people

Issues of concern

This is a detailed review with several welcome proposals for improving and consolidating the law.  However many organisations, including Citizens Advice, would like to see the legislation go further in several crucial respects.  Issues about information, transparency of legal rights, access to advice and redress, and effective enforcement and remedies tend to be the most critical for our clients.  In these respects, the review lacks insight into the difficulties and barriers that many people face in understanding and accessing their rights.  Our key concerns with the content of this review can be summarised as follows:-

  • Integration of discrimination and human rights legislation.  The proposals for reform of discrimination legislation should be positioned more clearly within a policy framework where human rights legislation and principles are overarching.  Not to do so seems to us to be a missed opportunity to establish a new, more integrated and effective system of human rights and discrimination law which will be fit for purpose for decades to come.  At present the proposals for reform appear to have been made from a collection of policy silos, without reference to the human rights context, which may, in some situations, offer a more effective remedy or driver for change.
  • Effective duties.  The proposals to harmonise public sector duties appear weak and ineffective.  First we think that public authorities should have a general duty to promote equality and tackle discrimination within which all strands have equal weighting.  By proposing an approach for a single duty in relation to a collection of priority areas the Government risks weakening the public sector positive duties, and enabling public authorities to cherry-pick the bits of equality they feel comfortable with and disregard the rest.  This legislation should be seeking to ‘level up’ rather than ‘level down’.
  • Parity.  The review does not take the opportunity to achieve parity between strands, age discrimination is not given parity with other strands, for example in access to goods and services – this in itself fails to recognise the important problem of ageism, the role of older people both as private consumers and the needs of older people as public service users.
  • Dispute Resolution and Enforcement.  Key issues such as the respective jurisdictions of courts, tribunals and ombudsmen, and the transparency, accessibility and effectiveness of dispute resolution and enforcement are not fully addressed in the review.  In particular the potential role of regulators in driving up equality standards is scarcely mentioned.  There is little in the proposals which could improve access to enforcement remedies, there needs to be a fast track for example, for obtaining non-discrimination notices.

The review focuses on tidying up existing law rather than reaching for new standard and vision of equality.  A higher degree of integration is required between discrimination legislation, the Human Rights Act and institutions established under the Equality Act.  As the Select Committee has recently concluded, the new Commission for Equality and Human Rights cannot proceed successfully in the absence of a clear and robust legislative framework, and the cautious approach of this review therefore adds to concerns that the Commission may not be fully ready to take on its new work from October 2007.  We agree with the Select Committee that the planning blight over discrimination law reform could set back the whole equality agenda by decades. Communities and Local Government Committee Equality Sixth Report of Session 2006–07

Improving the Law.

We hope that the review will be seen as the beginning rather than the end of a process to improve equality and rights legislation.  Unless fundamental principles are addressed, this could be missed opportunity to go beyond the traditional piecemeal legalistic approach to discrimination rights and protection, and to achieve greater legal clarity and certainty within a framework of values associated with rights, fairness, citizenship, equality and diversity.

We would therefore urge the Government to look again at the challenge of how to achieve a workable, fair, straightforward and effective single equality law, and to address our concerns about compliance, enforcement and sanctions and the changing context of discrimination.  In particular we have the following key recommendations

  • There should be a comprehensive public sector equality duty applicable to all grounds, backed by robust monitoring and enforcement mechanisms.
  • There should parity and transparency across all strands, underpinned by a general prohibition equally applicable to all strands and all consumer and employment sectors.
  • Access to information, advice, advocacy and representation needs to be built to the resolution and redress regime; this should engage the Community Legal Service through lifting current restrictions on tribunal representation funding, particularly if enforcement of discrimination and equality legislation continues to rely substantially on individuals taking action against either employers or traders.

We also recommend that further work needs to be undertaken on the following issues:-

  • Statutory and regulatory mechanisms for driving up equality standards the private sector, including options for co-regulation
  • Jurisdiction for dealing with equality cases and the respective case handling roles of courts, tribunals and ombudsmen.
  • Compliance and enforcement mechanisms that will be operated by the CEHR working in partnership with relevant inspectorates, ombudsmen and regulators.

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