Liberty s Second Reading Briefing on the Equality Bill in the House of Lords

Liberty s Second Reading Briefing on the Equality Bill in the House of Lords December 2009

About Liberty Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research. Liberty s policy papers are available at http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml Contact Isabella Sankey Anita Coles Director of Policy Policy Officer Direct Line 020 7378 5254 Direct Line: 020 7378 3659 Email:bellas@liberty-human-rights.org.uk Email: anitac@liberty-human-rights.org.uk 2

Introduction 1. Liberty has a long-standing interest in discrimination and equality. We have been involved in many leading discrimination cases 1 and a number of recent government consultations on the future of discrimination law. There is no doubt that significant steps have been taken towards greater equality in the United Kingdom over the last decade. We greatly welcomed the enactment of the Civil Partnership Act 2004, the Gender Recognition Act 2004, and the Equality Act 2006. This Bill follows that trend and contains many welcome measures, including the extension of equality protections across a number of different strands and the extension of the public sector equality duty. A Single Equality Act also presents a significant and historic opportunity for reviewing the principles underpinning our anti-discrimination protections. We believe the post-war human rights consensus to be an essential part of the equality agenda. As such, we believe that the consolidation and harmonisation of discrimination protection offered by this Bill is symbolic; recognising the inalienability and universality of the non-discrimination principle. 2. In this short briefing we summarise provisions that we particularly welcome as well as highlighting a number of areas where further improvement could be made. While there remain several improvements that could be made to the Bill in its current form, Liberty is overall supportive of the Bill and we are keen to ensure that it successfully completes its parliamentary passage in this session. We sincerely hope that parliamentarians from across the House will also support the Bill s completion in the short time that now remains. Protected characteristics 3. Liberty welcomes the extension of the protection against discrimination on several grounds, including gender reassignment; marriage and civil partnership; religion or belief; and sexual orientation, as well as race; sex; and disability. Greater harmonisation of the law of direct discrimination is long overdue and we are pleased that the Government intends to extend protection for victims of discrimination on 1 See for example S and Marper v UK; R (on the application of S) v Chief Constable of South Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire [2003] 1 All ER 148; Grant v United Kingdom (App. No. 32570/03) [2006] All ER (D) 337; Goodwin v UK (App No 28957/95) [2002] All ER (D) 158; Richards v Secretary of State for Work and Pensions [2006] 2 CMLR 49; A v Secretary of State for the Home Department (SSHD) (No 2) [2005] UKHL 71 3

protected grounds in a number of new areas. We are however, disappointed that there are a number of characteristics for which an unduly narrow definition is given and other characteristics which we believe should be protected, but which are not recognised here. Age discrimination 4. Liberty welcomes the extension of protection from age discrimination for over- 18s in the provision of services and public functions in Part 3 of this Bill. This will make it unlawful for a person to discriminate against a person on the basis of his or her age in the provision of goods and services. We believe that extending protection from age discrimination in this way sends a powerful equality message. We believe that this extension will have a particular impact for older people, many of whom suffer direct and indirect discrimination in so many aspects of their lives. 2 Indeed, a 2005 Age Concern survey found more people have reported suffering age discrimination than any other form of discrimination; and that from age 55 onwards people are nearly twice as likely to have experienced age prejudice than any other form of discrimination. 3 5. However, just as many older people experience age discrimination, younger people also face daily discrimination on the basis of their age. Liberty would therefore expect that in extending protection from age discrimination in the provision of services, the government would include everybody. Unfortunately, in its current form children under the age of 18 will not be protected against discrimination in the provision of services and the exercise of public functions. 4 Initially, the reason given for excluding children from this important protection was that there was insufficient evidence that children suffer age discrimination. The Minister for Women and Equality, Harriet Harman, stated in the House of Commons last year that there is little evidence of harmful age discrimination against young people. Harmful age discrimination is basically against older people. 5 Yet, there is substantial evidence 2 We note that this Bill, when enacted, will not affect the compulsory retirement age (which involves clear age discrimination) Schedule 22 protects anything done pursuant to a requirement of an enactment in respect of age. 3 See Age Concern England, How Ageist is Britain?, 2005, available at: http://www.ageconcern.org.uk/ageconcern/3de4e64ab5874330a11c1ab7790587bc.asp 4 Note, age discrimination (for both under 18s and over 18s) does not apply to the disposal, management and occupation of premises (see clause 32) and the provision of education in schools (clause 84). 5 See Statement in the House of Commons on 26 June 2008 by Harriet Harman, Minister for Women and Equality, Hansard Column 504. 4

of young people facing daily discrimination in respect of the provision of services, and in the exercise by public officials of their public functions. 6 Most worryingly, research shows that older children (i.e. 16-17 year olds) often receive less favourable treatment from health services, including mental health services and in respect of cancer treatment, and from child protection services. 7 These are issues of serious concern and could at least be partially addressed by including a prohibition in respect of discrimination against all age strands in Part 3. In particular, clause 29 prohibits discrimination, harassment or victimisation by a service-provider against a person requiring the service or by a person in the exercise of a public function. Expressly excluding children from this requirement (as currently occurs in clause 28) sends a negative message about the attitude that society takes towards children. By including children within this protection, parliamentarians would still be free to frame appropriate exceptions to the general rule that discrimination against children is prohibited. 6. At Committee Stage in the House of Commons, the Government, having accepted that evidence of harmful age discrimination against children exists, then put forward another argument that: Nobody would see any need to distinguish between the way they treat a 72- year-old and a 77-year-old, but they would want to treat a two-year-old and a seven-year-old quite differently. 8 There is no doubt that a two-year-old child has different needs to a seven-year-old child. However, the Government s reasoning applies equally to the differing needs of a sixty-year-old adult as compared to a ninety-year-old adult who will both now be covered by the extension of age discrimination protection to all those over 18. People of different ages no matter which age bracket they fall within will always have different needs. This is not a reason for excluding children under the age of 18 from any protection at all. Exceptions can be framed to expressly exclude protections where appropriate (e.g. excluding children from nightclubs, casinos or bars). 6 See Making the case: why children should be protected from age discrimination and how it can be done: Proposals for the Equality Bill, Young Equals, 2009, available at: http://www.crae.org.uk/assets/files/making%20the%20case.pdf 7 Ibid, see pages 8-9 and 10-11. 8 See Committee Stage, House of Commons, 10 th sitting, 18th June 2009, column 331. 5

Marriage and civil partnerships 7. The protected characteristic of marriage and civil partnership is defined in clause 8 as covering people who are married or a civil partner. This is a very narrow definition and does not cover either people who are in, or have been in, significant relationships for which they may well suffer discrimination or harassment, or indeed people who are discriminated against or harassed for because they are not in a relationship. This is despite the fact that the House of Lords 9 has ruled that a provision referring to a married couple should include an unmarried couple in order to comply with human rights law. 10 The way clause 8 is drafted excludes this possibility. At Committee Stage in the House of Commons, the Government stated that they have not had any evidence that such problems are faced by those who cohabit or are single. 11 This argument is unconvincing; Liberty believes that people who cohabit should also be protected and that protection from discrimination should not rest on the legal status of the union. In addition, those who have divorced or separated; those who have been widowed; and those who are single should not be allowed to be discriminated against on the basis of their status. It is difficult to see why, in principle or in practice, protection should be limited to those who are married or in a civil partnership. In Victoria, Australia, for example, equality legislation has for many years defined marital status as meaning a person s status of being single, married, domestic partners, separated, divorced or widowed. 12 8. The Bill also contains a large number of provisions which exclude married people from protection against discrimination including protection against dual discrimination (clause 14); prohibition against harassment (clause 26); Part 3 on the provision of goods and services (clause 28(1)(b)); Part 4 on the disposal, management and occupation of premises (clause 32(1)(b)); Part 6 on education (both at school, clause 84(b); in further education, clause 90; and by qualifications bodies, clause 95); and Part 7 in relation to membership of associations (clause 100(b)). This omission means that it is lawful to discriminate against a person on the basis of marriage in the provision of goods and services including when a person is exercising a public function; to discriminate against a married student in the provision 9 In re P (Adoption: Unmarried couple) [2008] UKHL 38; [2008] WLR (D) 198. 10 Under article 14 of the European Convention on Human Rights, which requires human rights be provided without discrimination. 11 See Committee Stage, House of Commons, 7 th sitting, 16th June 2009, column 209. 12 See sections 4 and 6 of the Equal Opportunity Act 1995 available at: http://www.legislation.vic.gov.au/domino/web_notes/ldms/publawtoday.nsf/a12f6f60fbd56 800ca256de500201e54/1F974B70EA40DB6ECA25750500811480/$FILE/95-42a055.pdf 6

of their education; and for an association to discriminate against, harass or victimise an existing or potential member or associate because they are married or in a civil partnership. In addition, Part 11 which contains the Public Sector Equality Duty does not apply to the protected characteristic of marriage or civil partnerships (clause 146). No explanation is given as to why marriage and civil partnerships as a characteristic is excluded from many of the protections afforded within this Bill. Although this reflects the current law there is no reason why this Parliament cannot go further than what is contained in present legislation to offer greater protection from discrimination, victimisation and harassment on the grounds of relationship status. If a person is discriminated against, victimised or harassed on the basis of marriage or civil partnership status why should this not be classified as unlawful in many of these areas? We hope that the government can provide Parliament with satisfactory answers to these questions. Pregnancy 9. A woman who is treated less favourably because she is pregnant (or because she has given birth within the previous 26 weeks) is protected to some extent under this Bill (see clauses 4, 17 and 18). However, no reason is given as to why this protection is not extended in respect of schools. Research has indicated that young mothers experience discrimination and disadvantage at school 13 and are less likely to have qualifications than others. 14 We hope that by excluding this characteristic from schools the government is not intending to send a green light to schools to say it is acceptable that pregnant girls be excluded from education merely on grounds of their pregnancy. At Committee Stage in the House of Commons, the Government failed to give a clear explanation as to why pregnancy and maternity are not protected characteristics with regards to discrimination in schools. The Solicitor-General, Vera Baird, stated that discrimination law is not the correct channel in which to address the needs of pregnant school girls or young mothers. 15 While we agree that discrimination law is unlikely to be the only channel for ensuring that pregnant school girls are given access to education (balanced of course with any medical concerns regarding their health), it does not necessarily follow that pregnancy and maternity should not also be afforded protection against discrimination in education. 13 See Guidance on the Education of Teenage Parents, 2001, DfESS/0629. 14 Teenage Pregnancy: Accelerating the strategy to 2010, 2006 DfES. 15 See Committee Stage, House of Commons, 12 th sitting, 23 June 2009, column 466. 7

Multiple Discrimination 10. Liberty welcomes the inclusion of clause 14 in the Bill. This clause was introduced into the Bill at Committee Stage and amended at Report Stage in the House of Commons. The clause ensures that direct discrimination against a person on the basis of two relevant protected characteristics would constitute discrimination and the person does not have to show that a claim of direct discrimination in respect of each protected characteristic would have been successful if brought separately. This is an extremely important provision. Addressing multiple discrimination is of critical importance if inequality is to be effectively addressed. Communities are not homogenous; discrimination and disadvantage is experienced differently within them, and a person may be discriminated against on more than one ground which taken alone may not be sufficient to protect against discrimination. 11. However, although we welcome the inclusion of clause 14, we are concerned that the clause does not go far enough to protect against multiple discrimination in all its potential forms. Clause 14 restricts multiple discrimination to cases of direct, but not indirect, discrimination. No reason is given as to why the clause is limited to direct discrimination. In practice this will mean that action which discriminates directly against, for example, black women will be unlawful yet a requirement that in effect discriminates against black women will not. Restricting multiple discrimination protection to direct discrimination alone may also raise difficulties for applicants when pleading their case, as it is often difficult to determine at the outset whether action constitutes direct or indirect discrimination. This should be determined by a court or tribunal once a matter has been heard. Limiting protection solely to direct discrimination may therefore cause difficulties in practice. We are also disappointed that the clause does not extend protection from multiple discrimination where one of the elements of discrimination is marriage and civil partnership or pregnancy and maternity. 12. Liberty is also concerned that sub-clause 6 enables a Minister to make orders specifying further what a claimant does or does not need to show to prove dual discrimination; and allows the Minister to further restrict the circumstances in which dual discrimination is prohibited by the Bill. Secondary legislation, which is not subject to a full and proper Parliamentary debate, should not amend primary legislation in relation to anything other than the most minor of amendments. Allowing 8

a Minister to make an order amending this entire provision gives an unacceptably broad power to the executive. Disability Discrimination 13. Liberty welcomes the inclusion of clause 15 and clause 19(3) in the Bill. These clauses (among other things) explicitly provide that a person will have discriminated against a disabled person if he or she treats the person unfavourably, because of something arising in consequence of the persons disability, or applies a provision, criterion or practice which is discriminatory due to the person s disability; and the treatment cannot be shown to be a proportionate means of achieving a legitimate aim. These clauses were introduced as a response to the interpretation of disability discrimination by the House of Lords in Lewisham v Malcolm. 16 In Lewisham v Malcolm the local council sought to evict Mr Malcolm from his council home after he sublet his flat in breach of his tenancy agreement. Mr Malcolm, who has schizophrenia, sublet his flat during a period when he was not taking his medication, and claimed that because of his disability he didn t understand that he was not allowed to sublet his flat. The Council argued that its policy was nondiscriminatory as it would evict anyone who breached their tenancy agreement. The House of Lords agreed with the Council and found, by a majority, that if the policy was applied equally to everyone who illegally sublet their flat then that was not discrimination under the Disability Discrimination Act 1995 (DDA). The basic effect of the decision is that as long as a policy is applied equally to all people it will not be discriminatory, even if it unjustifiably placed disabled people at a particular disadvantage. 17 We are therefore pleased clauses 15 and 19(3) have been included in this Bill to ensure that disabled persons are protected from indirect discrimination. Public Sector Equality Duty 14. Clause 148 of the Bill introduces a public sector equality duty requiring public authorities to have due regard to the need to eliminate discrimination, harassment, victimisation and anything else prohibited by the Bill; to advance equality of opportunity; and to foster good relations between people with a protected 16 Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43. 17 There may be a separate duty to make reasonable adjustments to prevent any substantial disadvantage to disabled persons but this duty is not sufficient to cover all instances of indirect discrimination. 9

characteristic (e.g. race, sex etc) and those that don t share it. There is currently a public sector equality duty that applies in relation to race, disability and gender. However, there is nothing in existing legislation covering age, religion or belief or sexual orientation. Liberty has consistently supported the creation of a public sector equality duty that covers all strands of discrimination and we therefore welcome the introduction of this provision. In addition to the extra protection that such a duty will provide, we believe that a unified equality duty sends an important message about the universality and inalienability of the principles of equality and non-discrimination. We also believe that a unified duty will help to guard against the creation of a hierarchy between equality strands. We do not think that equalities legislation should unnecessarily prioritise one group over another. That is, of course, not to say that those seeking equalities protection should be able to use the protection afforded to them to discriminate against others. We believe that a unified equality duty which promotes the equality of opportunity for individuals will best incorporate the overarching human rights approach to non-discrimination. 15. The public authorities that are bound by this duty include Ministers, government departments, the armed forces, the NHS, local government, educational bodies and the police (see Schedule 19). Who is and is not included as a public body can be amended by an order (clause 150), and we would once again caution against the excessive use of secondary legislation in this way. We also welcome the fact that persons exercising public functions, who are not themselves public authorities, must have due regard to the public sector equality duty when exercising those functions (clause 148(2)). Positive action 16. Clauses 157 and 158 cover positive action. Liberty notes that the inclusion of clause 157 extends the positive action provisions beyond what was previously muted. Clause 157 would represent a significant departure from measures that can currently be taken in relation to disadvantaged groups. One of the examples cited in the Explanatory Notes is: Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them. Liberty hopes that over the Bill s passage parliamentarians will fully examine the full implications of this proposal, in particular whether or not clause 157 may result in unintended consequences. 10

17. Liberty welcomes the introduction of clause 158 which will allow employers to take under-representation into account when selecting between two equally qualified candidates. Currently, positive action is allowed under existing discrimination law, both at EU and UK level. Unlike positive discrimination, positive action aims to provide a level playing field - the idea being that historically disadvantaged groups can then compete on the same terms for jobs or access to services. Positive discrimination can be distinguished on the grounds that it involves recruitment or promotion decision-making based primarily on the basis of a characteristic, irrespective of whether the person is the best candidate for the job. 18. Positive action is specifically permitted under EC law. 18 The European Court of Justice has held that a provision similar to that contained in clause 158 would be lawful as long as the two candidates are initially compared with one another on an objective basis. 19 Under existing UK law employers can target a particular underrepresented group through advertising, training or mentoring schemes. 20 However, the legal position as regards priority selection for an equally qualified candidate in an under-represented group has so far been unclear. The government has previously highlighted that this has led to confusion amongst employers as to how positive action can be used in practice. Gloucester Police have, for example, in the past confused the positive action/positive discrimination distinction by de-selecting 108 white male applicants and considering less qualified minority ethnic applicants for positions within the force. 19. The government has made clear that clause 158 aims to address historical disadvantage suffered by certain groups as well as protect employers who may wish to balance their workforces and promote diversity. Indeed, few would argue that structural disadvantage does not still exist in the UK. While clause 158 may extend slightly the positive action remit, we would stress that it does not represent any grand departure from the existing discrimination framework. Indeed, as many 18 Article 141(4) of the European Community Treaty states With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. 19 Hellmut Marschall v Land Nordrhein-Westfalen [1997]. 20 Both the CBI and the TUC have expressed their support for the positive action principle stating in a joint report ( Talent not Tokenism the business benefits of workforce diversity ) published in 2008: Balancing measures reflect the possibility that in some cases, to achieve a fair outcome, a difference in approach and methods to encourage may be required. It is this approach that many of the companies featured here have used to increase the diversity of their workforce. 11

commentators have pointed out, the law in this area is currently unclear and the number of situations in which employers are faced with two equally qualified candidates is rare. Discrimination in the workplace is still rife and if positive action/positive discrimination measures exist on a continuum (with help for underrepresented groups at one end and discrimination on their behalf at the other) this proposal is fairly modest. Clarification of the law will also protect employers who try to balance their workforces from the threat of discrimination claims. 20. We would also stress that while this proposal has been depicted and perceived by many as advantaging only women and minority ethnic employees, 21 it is worth noting that as this is expressed in gender and race neutral terms this could allow re-balancing in any workplace where under-representation is established. This means that it will not always be women and minority ethnic groups that will feel a benefit. Sectors where, for example, white men are under-represented (such as the teaching sector) would also be able to use the power to help rebalance the workforce. Exceptions 21. There are a number of exceptions to the discrimination provisions contained within the Bill. The main exceptions are found in Schedules 3 and 23. While there is clearly a need for certain well-defined exceptions to be included in the Bill, we have some concerns with how broad some of these exceptions are and, in particular, the fact that many of these exceptions will be set out in secondary legislation, so it is impossible to know what they will contain. For example, Schedule 1, paragraph 1 provides that Regulations may prescribe a condition to be, or not to be, an impairment for the purposes of determining what is a disability. Paragraph 32 of Schedule 3 provides that a Minister may amend the Schedule, which sets out exceptions to the prohibition of discrimination in the provision of services and public functions, by an order either to add to, vary or omit an exception in relation to a disability, religion or belief or sexual orientation. The order could also add, vary or omit an exception in respect of the exercise of a public function on all of the other applicable grounds (except age, for those over 18). There is also a very broad power in clause 196 which allows a Minister to make an order to harmonise UK legislation with a European Community law. As Liberty has consistently stated, secondary 21 Cf http://www.dailymail.co.uk/news/article-1029526/harman-vows-force-true-equalityworkplace-bosses-plan-nightmare.html 12

legislation should not be used to amend primary legislation. Instead amendments to legislation should be allowed to be properly debated and considered by Parliament with the ability for amendments to be proposed and made by Parliament. If not, it becomes the Executive branch of government that wields the most power rather than democratically elected representatives. Disability and immigration 22. Schedule 3, paragraph 16 provides that the prohibition on discrimination in the provision of services and in the exercise of a public function does not apply to immigration decisions to refuse entry clearance, or to refuse, cancel or vary leave to enter or remain in the UK, if necessary for the public good. This effectively means that it will not be discriminatory to refuse a person entry into the UK if that person has a disability, or if he or she is required to leave the UK because of a disability. This is a new exception. While it is understandable that some people may be refused entry into the UK because it is necessary to protect the health of the general public (for example, because that person has a contagious disease), this provision goes much further and applies to all disabilities simply if it is necessary for the public good. This could mean that a non-citizen who develops cancer could be expelled from the UK if it is deemed necessary for the public good to do so (because for example their cancer treatment will need to be paid for by the NHS) regardless of how long that person may have been resident in the UK. It could also mean that a family with a child with a disability could be refused entry on the basis that the child will be a cost to the public health system over time. 23. In Committee in the House of Commons, the Solicitor-General fleshed out the Government s thinking on this issue stating immigration authorities might need to exclude someone who has a particular mental or other condition who represents a risk to public safety, rather than to public health specifically. 22 This could mean that a non-citizen suffering from a mental illness which can be easily managed and treated could be deemed a risk to public safety and expelled from the UK. Liberty accepts and understands that successive Parliaments have granted the Home Secretary a very broad discretion to exclude or deport any person he considers to be non-conducive to the public good. This wide statutory discretion is, and always has been, subject to normal public law principles such as rationality, and the 22 See Committee Stage, House of Commons, 10 th sitting, 18 June 2009, column 360. 13

government s obligations under domestic and international human rights law. Liberty takes no issue with the use of this discretion to exclude or deport people who pose a threat to the UK, subject always to the normal principles of public law fairness and human rights. We do, however, take issue with the idea that certain individuals by virtue of their disability could be deemed a threat to the UK and face automatic discrimination and exclusion. We have in place domestic arrangements to cater for those with disabilities which are intended to provide necessary treatment and care for those within our borders. It is a dangerous precedent indeed to say that a person s disability could qualify them for expulsion from the UK and that discrimination protections must not apply. It is also unclear why a foreign national with a disability could be deemed to pose a threat to UK security by virtue of their disability yet a national with an identical disability could be accommodated This is a controversial clause that urgently needs proper parliamentary scrutiny. Religion and immigration 24. Similarly Paragraph 18(2) and (3) of Schedule 3 provides that the prohibition on discrimination on the ground of religion or belief in the provision of services and in the exercise of a public function does not apply to immigration decisions to refuse entry clearance or to refuse or cancel leave to enter or remain in the UK, if the person s exclusion is conducive to the public good or to vary such leave if it is undesirable to permit the person to remain in the UK. This effectively means a person can be refused entry or expelled from the UK on the basis of their religion or belief if to do so is considered conducive to the public good. In Committee in the House of Commons, the Solicitor General stated that some individuals religious beliefs are so extreme that it would not be desirable for them to enter or remain, as they could cause or incite harm to others. 23 As we make clear above, Liberty accepts and understands that successive Parliaments have granted the Home Secretary a very broad discretion to exclude or deport any person he considers to be non-conducive to the public good. It is clear that there may be occasions where exclusion from the UK on the basis of the public good is necessary and justified, for example where there is evidence that the person may incite people to commit violence. Exclusion on this basis would not be discriminatory because it would be exclusion because of the person s actual or suspected behaviour. A decision taken to exclude a person on the basis of the public good should be restricted to whether or 23 See Committee Stage, House of Commons, 10 th sitting, 18 June 2009, column 361 14

not that person is suspected of planning to incite violence, irrespective of their religion. Security Services and National security 25. There are a number of provisions in this Bill that exclude provisions from applying to the security services or provide exemptions on grounds of national security. For example, clause 190 provides that a person will not contravene anything in the Bill if it was done for the purpose of safeguarding national security and is proportionate to that purpose. Moreover, paragraph 5 of Schedule 3 provides that there are no grounds for discrimination in the provision of services or in the exercise of a public function if done by the Security Service, the Secret Intelligence Service, the Government Communications Headquarters (GCHQ) or a part of the armed forces assisting the GCHQ. Clause 116 also provides that people (including the claimant or pursuer) can be excluded from proceedings in relation to a discrimination claim if it is expedient to do so in the interests of national security. No particular reasons are given for this broad and blanket application of rules other than use of the term national security. This government has played fast and loose with the broad national security justification in recent times. Liberty hopes that parliamentarians will reflect and consider whether such justifications are legitimate or necessary in the sphere of equalities protection. Concluding observations 26. There is much to be welcomed in this Bill and we applaud the government for introducing this important piece of consolidating legislation. Above we have outlined several clauses which we particularly welcome, as well as areas in which we believe there is room for improvement. In addition to our comments above we also particularly welcome clause 78, which empowers regulations to be made requiring information to be published in order to ascertain whether in larger workplaces there are differences in the pay of male and female employees. According to the Equalities Review 24 published in 2007, the gender pay gap, at present rates of change, will not close until 2085. 25 Liberty considers that utterly unacceptable. Although there is nothing in clause 78 that will address structural and entrenched 24 See http://archive.cabinetoffice.gov.uk/equalitiesreview/ 25 See page 24 of the Equalities Review. 15

forms of pay disadvantage, it is a step along the way to identifying whether there are unjustified pay differentials. We acknowledge that discrimination is not the only the cause of unequal pay but disadvantage associated with gender including discrimination are the causes of unequal pay. Voluntary measures have not worked, as the statistics demonstrate. We also welcome the extension of the ability of the Secretary of State to give directions to a school to comply with duties not to discriminate under clause 87. This currently only applies in relation to sex discrimination but will now appropriately apply to all protected characteristics. Finally, Liberty also supports clause 123 which empowers an employment tribunal to make wider recommendations in discrimination cases rather than just in respect of the individual claimant. Rachel Yates Isabella Sankey 16