rose to move, That the Grand Committee do report to the House that it has considered the Sex Discrimination (Amendment of Legislation) Regulations 2008.
The noble Baroness said: The draft regulations were laid before the House on 6 March, and I confirm that their provisions are compatible with the European Convention on Human Rights.
The United Kingdom has a long tradition of legislating to protect people from discrimination. We have had protection from sex discrimination in employment, education, the provision of goods, facilities, services and the management of premises in Britain since 1975 and in Northern Ireland since 1976. It is in this context that the Government welcome the fact that European law is catching up with long-standing principles that are enshrined in our domestic law by extending existing European protection in employment-related areas to non-employment areas.
We welcome the European Council gender directive, which is implemented by way of these regulations in Great Britain and Northern Ireland. It will ensure consistency in sex discrimination protection throughout the European Union. Our proposals for implementation have been the subject of public consultation both here and in Northern Ireland. In Britain, that was alongside the consultation on the proposed Equality Bill, from 12 June to 4 September; and the Northern Ireland Executive consultation followed from 30 July to 21 September, setting out proposals that mirrored closely those for Great Britain.
The regulations introduce some new protections and extend others in existing sex discrimination law in the fields of goods, facilities and services—I am tempted to say “GFS” from now on; it might shorten our debate by about 20 minutes—and premises. In short, these regulations are a welcome stepping stone to the further reform of discrimination law that is intended to take place through the Government’s proposed Equality Bill in Great Britain. At the same time, there are some differences between what is required by the gender directive and the existing UK protections.
The regulations are being made under the European Communities Act 1972. The small number of amendments to the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976 are required so that additional protection in line with the gender directive applies to both women and men in the provision to the public of goods, facilities and services—regardless of whether such goods, facilities and services are provided free or are charged for—and the disposal or management of premises.
The most significant proposals on which we consulted between June and September 2007 in Great Britain, and in Northern Ireland between July and September, were the following. The first was a specific prohibition on sex and sexual harassment in the provision of GFS. Our legislation currently provides protection from discrimination but not from harassment. The second proposal was protection from discrimination and harassment in relation to GFS and premises for people intending to undergo, or who are undergoing or who have undergone, gender reassignment. That would extend protection to an estimated 5,000 people who are at present excluded from protection in the field of GFS. The third would express protection from discrimination in the field of GFS and premises for women on the grounds of their pregnancy and maternity. We do not have that explicit protection in this area of our legislation, although in fact many cases are likely to be covered by existing sex discrimination law. Fourthly, the regulations would introduce greater transparency where insurers offer differential premium and benefit levels on the basis of gender. The fifth proposal is a shift in the burden of proof requirements.
So, we have here a welcome opportunity to improve our existing laws in advance of an Equality Bill in Britain. The timetable for amending our legislation is determined by the directive, which required member states to implement it by 21 December 2007. It is important therefore that we act at the earliest possible opportunity to bring ourselves in line with European law.
I am sure that Members of the Committee will have noticed that these important regulations, which replace those laid before the House on 28 November, amend legislation in Great Britain and Northern Ireland. Let me explain why we have done that. Northern Ireland Ministers have competence to legislate on discrimination matters, and the intention was for similar regulations to be introduced there to the same timetable. However, it became clear late in the process that the First Minister and the Deputy First Minister could not reach joint agreement on all the policy proposals to implement the gender directive. A failure by part of a member state to comply with the directive will be considered by the European Commission as a breach by the whole member state—here, the UK—and that clearly was not an option.
Although implementation is now already late, the Government considered that the most effective means of ensuring that the UK as a whole could comply with the directive was for regulations implementing the directive in Britain and Northern Ireland to be taken forward at Westminster. Northern Ireland Ministers have not objected to this course of action and we have had the support of Northern Ireland officials in drafting the regulations. Legislating in this way offers the most effective means of putting these additional protections in place in Great Britain and Northern Ireland as soon as possible after the deadline of 21 December 2007, which we are committed to doing.
I have spoken about the wide consultations on the changes. The Government presented the proposals for the draft regulations alongside the wider proposals for an Equality Bill for Great Britain in a single consultation package, so that stakeholders could see how the proposals fitted into the wider landscape of discrimination law reform. There was an equivalent consultation in Northern Ireland. We have noted and drawn on the consultations in drafting our final proposals.
These proposals are complex. I hope that Members of the Committee will forgive me if I go into a bit of detail as it is important to understand the range of changes. Protection against discrimination and harassment on grounds of gender reassignment is not new in UK law. We are simply extending the protection that already exists for employment. The Sex Discrimination Act and, in Northern Ireland, the sex discrimination order already provide protection from discrimination and harassment in employment and related areas for people who are planning to undergo, who are undergoing or who have already undergone gender reassignment. But we are clear that we need to extend protection on those grounds outside the workplace if we are fully to implement the directive.
The directive does not expressly confer protection in this field, but a joint European Council and Commission statement recognises the application of the principle of equal treatment in the directive to grounds of gender reassignment. The principle, that the right not to be subjected to direct discrimination on grounds of sex includes changing sex or gender reassignment, is not new. It was set by the European Court of Justice in a 1996 employment case. In interpreting the reach of the directive, we have taken our lead from the Council and Commission statement and from that 1996 judgment. In 1999, we introduced regulations outlawing discrimination on the grounds of gender reassignment in Britain and Northern Ireland in the field of employment.
We now have the opportunity to extend discrimination law protection on the grounds of gender reassignment to goods, facilities, services and premises. It might be helpful if I reaffirm what is not covered by these regulations in that respect, given that, in 2007, we had debates on related issues when we introduced the Equality Act (Sexual Orientation) Regulations 2007. These regulations make similar changes.
As I think Members of the Committee will agree, it is unnecessary for me to repeat what I said in the extensive debate we had on those issues a year ago except to make the following points. Religious worship and observance fall outside the scope of the directive, so these regulations do not in any way affect such activities; nor do they prevent people holding the belief that it is wrong to seek to undergo gender reassignment. But the regulations prohibit discrimination and harassment in areas covered by the directive, such as services normally provided on a commercial basis. For legal certainty, and in response to comments we received from the Equal Opportunities Commission during the consultation period, we have clarified that in new paragraph 9(c) of Schedules 1 and 2 to the regulations.
The regulations simply outlaw a person being denied access to a shop or being the subject of abuse by a sales person, for example, because they intend to undergo, are undergoing, or have undergone gender reassignment. As we argued in relation to the 2007 regulations, an exception for individual religious believers to be exempt from the regulations—for example, the Christian owner of a commercially-run bookshop or cafe—would effectively create an individual conscience clause that would introduce a test that is so subjective that it would render the regulations ineffective for the purposes of implementing the directive and would therefore be unenforceable.
Apart from the directives, Parliament has already made its views clear that it is quite wrong in the United Kingdom today for people to be discriminated against because of the prejudices of others. The regulations extend those rights to a very small group of people who are currently unprotected in these areas. We are right to act with Europe to increase protection for people on the ground of their gender reassignment.
The regulations achieve the right balance between protecting religious liberty and human rights under the law, ensuring that people are free to hold and observe their religious beliefs but not to manifest them in such a way that treats one group of people differently from others.
I turn to harassment. Protection from harassment in the UK originated in domestic case law and was put on a statutory footing following implementation of earlier European directives. In employment and related areas, in 2003, we expressly outlawed harassment on the grounds of disability, sexual orientation and religion or belief; and on the grounds of age in 2006. In the case of race, the relevant directive has a wider reach, so in 2003, we outlawed harassment not only in employment and related areas, but also in goods, facilities, services and premises. In 2005 we introduced protection against sex, sexual and gender reassignment harassment in employment and related areas. Now the regulations will make it unlawful for a provider of goods, facilities, services or premises to subject a person who seeks to obtain those goods or use those services, or who is supplied with them, to sexual harassment, sex harassment or harassment on the grounds of their gender reassignment.
There is, however, an additional change to which I want to draw attention. It was made following a judicial review brought by the former Equal Opportunities Commission. In March 2007, the court ruled that the definition of sex harassment in the Sex Discrimination Act 1975 should be recast to provide a slightly broader definition by reference to the relevant European directive, which itself provides a new definition of sex harassment. Put simply, that would, in the employment context, mean that where one person is telling a sexist joke to another person at work, and a nearby employee overhears and considers that this has violated their dignity or created a hostile or offensive environment for them, they could make a claim that they have been subject to harassment related to sex. Such a situation is not covered by the existing definition of sex harassment, so that is an important change.
Regulations giving effect to that ruling were laid before Parliament on 14 March and are to commence on 6 April 2008. Because the sex discrimination order in Northern Ireland broadly mirrors sex discrimination law in Britain, equivalent amendments are being made to it.
Although the judgment addressed specific situations in employment and related areas and is related to the implementation of the relevant European directive covering employment and related areas, the gender directive uses the same definition of sex harassment as the European employment directive. The regulations therefore apply the same new definition of sex harassment introduced on 6 April, which will give effect to the judicial review judgment, to the fields of goods, facilities, services and premises. We will therefore have consistency within the Act. I hope that that will meet the concerns of the Equality and Human Rights Commission which, I know, wanted to be clear how the new definition would apply outside the employment area. In essence, therefore, from the date that the regulations come into force, a person seeking to access goods, facilities, services and premises will also be protected from sex harassment based on the new broader definition. This in turn addresses the concerns of the JCSI, which brought the House’s attention to the draft 2007 regulations in this respect. I am pleased to be able to say that the most recent report from the JCSI did not draw the attention of the House to any issues with regard to the regulations.
The Merits Committee also considered the draft 2007 regulations. It concluded that the special attention of the House need not be drawn to them, but it did publish the Christian Institute’s evidence, which asserted that the draft regulations would implement the gender directive in a way that would infringe religious liberties and free speech. Annexe 2 of the Merits Committee’s 5th report of Session 2007-08 lays out our response. Likewise, the committee’s 15th report has not brought the special attention of the House to the regulations, but it has included further evidence from the Christian Institute and from the Lawyers’ Christian Fellowship, which raised similar concerns, and further information from the Government Equalities Office.
That gives me the opportunity to say that, although I believe that I have already addressed many of the concerns that were expressed, I will pick up on the specific concern that we have unjustifiably broadened the definition of harassment. The claim is made because we have used “or” to link two aspects of harassment, whereas the gender directive uses “and”. Thus, in our regulations, a person need show only an “offensive environment” or that their dignity was violated. We have adopted this approach for the simple reason that the wider definition was established by case law in other areas of discrimination and that to change the definition not only would be inconsistent with other areas of discrimination law but would breach the principle of non-regression. In other words, it would dilute our law, and we cannot do that. In any event, the directive allows us to provide extra protection to the protection that is strictly required by it.
Many of the other points raised about gender reassignment harassment related to specific circumstances. Simply, if a claim of gender harassment in the provision of goods, facilities, services or premises is brought, the courts will need to balance out the competing interests of the transsexual person and the Christian service provider.
On pregnancy discrimination, the regulations explicitly prohibit discrimination against pregnant women who are seeking access to goods facilities, services and premises, thereby ending a reliance on sex discrimination case law. In so doing, we have adopted as far as possible the approach already established in employment. However, I reassure people who feel that we may have introduced a loophole into the law. Although the consultation did not seek views on defining pregnancy discrimination, the civil aviation sector expressed concerns that where airlines have policies not to carry late-term pregnant women on flights, these policies may amount to direct pregnancy discrimination, which is obviously prohibited.
The regulations therefore include a clarifying health and safety provision. An airline therefore does not discriminate on grounds of pregnancy if it refuses to allow a woman in the late stages of pregnancy to fly because it is reasonable for it to believe that to allow her to fly would create a risk to her health and safety and if it applies this health and safety policy similarly to people with other physical conditions which it reasonably considers would create a risk to their health and safety. A comparable case might be that of someone with a heart condition. The provision applies equally to sports that could put a pregnant woman at risk. I am given the example of bungee jumping, although other things would probably come into that category.
On maternity discrimination, there are new protections for women who have recently given birth. The directive does not offer a definition of maternity, but responses to the consultations overwhelmingly supported our proposal to define it by reference to the period of time that has elapsed since childbirth so as to provide the greatest legal certainty. We therefore decided that the length of time that has elapsed since childbirth will determine the period of protection from maternity discrimination. That received general agreement, but there was less agreement on the length of the protected period. The consultation suggested 52 weeks as a basis for discussion, while the wide variety of respondents’ views ranged from as little as eight weeks, in the case of some insurers, to as much as three years in the case of pro-breastfeeding lobbyists. We have ruled out the higher and lower extremes as being difficult to justify, given that we believe that the purpose of the provision is to protect the unique relationship between a mother and her newborn child. We have opted for a period of 26 weeks following the birth of the child as an appropriate period of time for a new mother to be protected from maternity discrimination. We have arrived at that period of time because it is a sensible balance, meeting, but not exceeding, what was intended by the directive.
On insurance changes—and I am getting to the end—Section 45 of the Sex Discrimination Act and Article 46 of the Sex Discrimination (Northern Ireland) Order currently enable the insurance industry to treat men and women differently, provided that the treatment is reasonable and is supported by reliable actuarial evidence. The directive allows us to continue to permit gender-based differences in insurance premiums and benefits, but it now requires that data relevant to the use of gender as an underwriting factor are compiled, published and updated. This publication requirement is new. It will enable customers to see how differences in premiums and benefits on grounds of gender arise, for example in motor insurance.
The differences in treatment between men and women must be proportionate to the underlying data. However, the regulations make an exception for costs relating to pregnancy or maternity. Those must not be reflected in differences in premiums and benefits, which can sometimes be the case at present. The Government will defer this specific provision relating to pregnancy and maternity costs until 22 December 2008, to give the insurance industry sufficient time to prepare for the change with minimal disruption.
The new express ban on discrimination on grounds of pregnancy is likely to impact on existing insurance practices where, for example, pregnant women are sometimes refused travel insurance altogether in the final weeks of their pregnancy. With effect from December 2008, insurers will not be able to increase premiums for women to reflect the cost of pregnancy or maternity. For example, they will not be able to charge more to expectant mothers or those expecting twins or a multiple birth. We have worked closely with the insurance industry to arrive at these plans and in developing our implementation proposals. The Treasury has published guidance for the industry on the procedures that must be followed to comply with the directive.
Finally, the burden of proof is very straightforward. In the areas that we have been discussing, the burden of proof will now be reversed. Where the claimant can show a prima facie case of discrimination, or facts from which it can be presumed that discrimination has taken place, the burden will shift to the respondent to show why there was no such discrimination.
For the purposes of today’s debate, I have concentrated on those areas that may be of most interest to Members of the Committee. Once we implement this directive in the United Kingdom, we will have increased legal protection for people who wish to access or use goods or services provided to the public as set out by the directive, without fear of discrimination on grounds of sex, gender reassignment, pregnancy or maternity, or sex, sexual or gender reassignment harassment. I commend the regulations to the House. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Sex Discrimination (Amendment of Legislation) Regulations 2008. 13th report from the Joint Committee on Statutory Instruments.—(Baroness Andrews.)
I start by thanking the Minister for that very extensive speech. There are a lot of subjects wrapped up in the regulations, and I do not want to concentrate on most of the subjects on which she has enumerated this afternoon. When I hear a speech lasting 22 minutes from a Minister introducing regulations, I have a nasty suspicion that there is something to hide. I am going to absolve her of that today, but perhaps not in the future; we shall see.
We are discussing today an important review of the Sex Discrimination Act 1975 and the Sex Discrimination Act 1975 (Amendment) Regulations 2007, which were made on the back of the Act. It is a shame that this discussion did not take place when it was initially intended to in December, but the Government have shown only too frequently of late that they find sticking to timetables more than a little testing. So to begin discussion of this long awaited topic we will need to refresh our memories on what it is about. As the noble Baroness said, these amending regulations bring statute law into line with case law. They are also a response to the Equal Opportunities Commission’s ruling that the previous regulations amending the Act fell short of the 2004 European Community’s gender directive’s intention to ensure that women in the workplace are not subjected to,
“any unwanted conduct related to their sex which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”.
That is a very clear definition of harassment. This is to be illegal in future in the areas about which the noble Baroness spoke, and it is absolutely right that that should be the case.
The result is that instead of depending on individuals making complaints about sex discrimination, the duty places the legal responsibility on public authorities to demonstrate that they treat men and women fairly. The duty will affect policy making, public services such as transport, and employment practices such as recruitment and flexible working. These Benches stand in firm support of any directive or action that any Government can take to remove sexual prejudice or exploitation. We therefore support the implementation of the regulations and the intention that lies behind them.
Before I explain why I am not entirely satisfied with these new regulations I feel it necessary to make it clear for the record that I believe that much in them is good. Indeed, this was set out clearly and extensively in the noble Baroness’s long speech. They will realise some very sensible decisions. They do not blindly extend protection to an apparently vulnerable sex regardless of the circumstances. For example, it is correct, in paragraph 7.24, that women on flights and those partaking in certain “extreme” sports are excluded from sexual discrimination when heavily pregnant. But, a word of caution, there are bound to be arguments about the legal definition of “heavily”.
The regulations being discussed today have been much anticipated. The judicial review held in late February 2007 exposed the Government’s previous regulations made in 2005 to have been a failure. Lack of clarity in the drafting meant that women risked losing the full protection against pregnancy discrimination that they now have under UK case law. It also did not stipulate that pregnancy and maternity leave must be counted by employers as continuous service for the purposes of promotion. That sentence sounds a little odd—quite how pregnancy can be continuous service rather defies my imagination. The High Court ruled that the 2005 regulations not only failed to implement the 2004 gender directive but made life worse for pregnant women than the then law.
So, it is as clear as daylight that there is an immediate and obvious need for new regulations. But I have been disappointed to see how slowly the Government have responded to this need. Perhaps they do not find regulations particularly pressing or as thrilling as getting new legislation on to the statute book. If one looks around the Grand Committee, one sees that these regulations are receiving not nearly the attention they would have had if they been discussed in the Chamber. Whatever the case, as the Explanatory Notes explain in paragraph 7.9, the Government decided to consult on the gender directive as part of a wider consultation on proposals for an Equality Bill, as the noble Baroness mentioned. However, the original start of the consultation got pushed back from the planned start date of March. This was due to the need,
“to focus on getting the policy for an equality Bill right”.
That is all well and good in theory but these regulations are not one and the same as the Equality Bill. The noble Baroness explained that a little but it would be extremely helpful if she would expand on that in her response.
I was glad, too, that the noble Baroness agreed with me that the regulations were delayed because the Government acceded to the request of the First Minister in Northern Ireland that the regulations should cover the whole of the United Kingdom so that they need not be debated separately in the Province. There is a history behind that but I do not think it would be profitable for us to go into it today.
Whatever the reason for this delay, the start of the consultation period had disappointing implications for the 2007 regulations. As the consultation was finally published on 12 June and the responses had to be received by 4 September, there was less than three months’ consultation and it was over the summer period. That is not exactly an example of good government. Can the Minister explain why there was such a delay in starting the consultation process? I should also be interested to hear from her whether it is normal practice these days to hold consultation over the summer period when many people are on holiday and the consultation cannot be given the consideration that in normal circumstances it deserves.
It is perhaps not unsurprising then that the consultation process has not come up with entirely sufficient answers to all that is proposed in the regulations. I refer the Committee to the definition of harassment at paragraph 7.8 of the Explanatory Notes. It seems as though this definition of harassment is still being consulted on as a result of the Equal Opportunities Commission judicial review. To avoid further delay and further uncertainty, could this issue not be tidied up in the very near future? How far is the judicial review from reaching a verdict?
Given the Equal Opportunities Commission revelation that where sexual discrimination is most “rife” is in the employment domains of bars, restaurants and hotel trades, which are estimated to employ more than 670,000 women, I find the explanation in the Explanatory Notes that the new regulations will cost business around £12 million only too likely. Although it is of course a necessary cost, it is a considerable one. I fear that some less honourable businesses may shirk it to cut financial corners. Can the Minister assure me that the Government have made special provisions to ensure that all businesses will comply fully with the legislation when it comes into force? What steps have the Government taken to try to minimise the cost of these regulations to business to make them seem more attractive?
Even from a brief glance at the regulations one can see that one of their clear occupations is with the reconsideration of transsexualism or gender reassignment. I shall take a random example: Regulation 4. This regulation amends subsection (2A) of the Sex Discrimination Act to extend protection from direct discrimination on grounds of gender reassignment to some 5,000 people, as I understood the Minister to say. This, in addition to the other protective extensions provided within the regulations, will certainly result in a significant increase in the number of employment tribunal cases made in the United Kingdom. Can the Minister assure me that arrangements have been made so that the tribunals will be able to cope sufficiently with this increase in hearings?
Everyone should have an equal chance. I am relieved that the Government have the sense to go some way towards realising this very simple but very important objective in their new regulations. They did, after all, need to right the wrongs of their former legislation and make our culture a more just place for women to live and work in. I hope that this time the Government have it right and that we will not have to go through this whole operation again.
The Minister deserves our sympathy and gratitude for having to explain at great speed such an obscure and complicated subject. We will all need to read and think about her important speech hereafter because a great deal of what she said is of great importance not only to people in Parliament but well beyond.
The subject is very complicated. I find it particularly so because there are different directives and different regulations. I shall probably get this wrong, in which case I shall be corrected. There are the Sex Discrimination Act 1975 (Amendment) Regulations 2008, which implement Council Directive 113 and are concerned with implementing the principle of equal treatment between men and women in the access to and supply of goods and services available to the public. There is also another set of regulations, the Sex Discrimination (Amendment of Legislation) Regulations 2008, which are to come into force on the same day, 6 April. They implement another directive, which I will come to. As the Minister said, implementation should have been completed by 21 December 2007, but the process of implementation was delayed for various reasons, which I understand and sympathise with. The Minister has explained that there is a pressing need to implement the directive; we agree.
Directive 113 is clear that there should be no direct discrimination, including less favourable treatment for women by reason of pregnancy and maternity. The Minister has explained why the Government have chosen to limit protection to the first 26 weeks after birth. It is strongly arguable that that limit of 26 weeks is not consistent with the decisions of the European Court of Justice in Lewen against Denda and in Brandenburg against Sass, as applied by the High Court in judicial review proceedings in the EOC against the Secretary of State for Trade and Industry.
This is not the place to argue whether that is right or wrong, but there is no material difference between the wording of the equal treatment amendment directive 2002/73/EC, known as ETAD, and the directive here being implemented. In my view, it is strongly arguable that to comply with the directive, the period of protection ought to be extended. This is obviously a very important issue, which affects a large number of women and men.
During the Discrimination Law Review consultation, the EOC raised a number of important concerns, only some of which are being met in these and the other regulations. Others are outstanding. I have drawn those to the Minister's attention. Again, this is not the place in which to go into each and every one, but we are grateful for the Minister's assurance that there will be discussions as a matter of urgency, so that the matters raised by the commission and its successor, the Equality and Human Rights Commission, may be taken into account in developing policy on the proposed performing legislation and to secure full compliance with the UK's Community obligations.
Perhaps I may give an example—I will not give a whole series of them. Article 2(a) of the directive defines direct discrimination as occurring,
“where one person is treated less favourably on the ground of sex, than another is, has been or would have been treated in a comparable situation”.
It says “on grounds of sex”, not “on grounds of her sex”. But Section 2(1)(a) of the Sex Discrimination Act 1975, for which I suppose I am partially responsible as one of its architects more than 30 years ago, is narrower and applies only to the grounds of the complainants’ sex, rather than on grounds of sex. Incidentally, that is also narrower than the definition of direct racial discrimination in the Race Relations Act 1976, which refers to racial grounds but does not require the grounds to be the complainants’ ethnicity. That is one important problem about the concept of discrimination.
There is also a similar problem with gender reassignment, where Section 2A of the Sex Discrimination Act is narrower than the directive, both on direct and indirect discrimination. I perfectly understand the reasons for adopting the definition of harassment as it has been in the regulations, but may I strike a cautionary note? As the Minister may know, we in this House have again and again resisted the notion of religious harassment involving violating a person’s dignity on religious grounds for free speech reasons in debates that were similar to the debates that we had about religious hate speech, which were important. While I understand the very broad definition being given to harassment and the concept of gender, it should not be taken as a precedent on the basis that one size fits all and that one would do precisely the same in the area of religion, which gives rise to rather different issues.
On insurance, in response to the consultation, the EOC welcomed the proposal that the data on which insurance companies rely to calculate premiums are to be made available to the public. However, the commission explained in some detail, in answer to question 80 of the consultation, its view that the implementing regulations do not comply with the directive. The Minister has explained that the Government have worked closely with the insurance industry in developing the implementation proposals. I ask him for an assurance that the Government will also work closely with the commission to ensure full compliance with the directive by 22 December 2008.
My own view is that it is as unfair to discriminate for the purpose of insurance on the grounds of sex on the basis of actuarial data as it is on racial grounds. I have always believed that one should look at each person on the basis of his or her merits and not on the basis of their gender. Indeed, I think that women will now die as quickly as men if they lead the same appalling lives of stress and strain in this place or elsewhere, and so to generalise on the basis of the death rates of all women or all men is an invidious and unfair generalisation. Therefore, although the Government, on behalf of the insurance industry, have taken a more moderate line than that, I hope that in the long run actuarial premiums will no longer be calculated on the basis of gender-based statistics.
I remember the great American judge, Sandra Day O’Connor, in a leading case many years ago pointing out that some generalisations, even if true, should not be acted on—she was referring particularly to gender—so the mere fact that there are different death rates between men and women should not, if you aggregate all of them, lead to differential premiums. You should look at the individual person on the basis of their occupation, age and a number of other factors. In any case, we would like an assurance that the commission will be closely involved in those discussions.
On freedom of religion, I am delighted that no one here today seems to be taking up a different cause for fighting faiths. I entirely agree with the Minister that religious worship and observance fall outside the scope of the directive and are not affected by the regulations. The commission expressed concerns during the consultation, in paragraphs 79.2 to 79.14, about the compatibility with the directive of sweepingly broad religious exemptions, and I fully share those concerns.
The sprawling, tangled, impenetrable thickets of British anti-discrimination legislation are obscure and incomprehensible to everyone except a handful of specialist lawyers. Although I regard myself as a specialist lawyer, I, too, find some of it almost incomprehensible. The legislation contained in many inconsistent statutes and in hundreds, if not thousands, of regulations is in urgent need of comprehensive, user-friendly reform, so that everyone can enjoy access to justice. There is a pressing business need, as well as a need based on simple justice for victims, for the introduction at long last of a single equality Act that works in practice to eliminate discrimination based on sex and other grounds and to promote genuine equality of opportunity and treatment. My party will support the Government if they introduce legislative reforms that meet the high standards needed by employers, trade unions, service providers and vulnerable individuals and groups.
These regulations are the latest example of the Government’s use of the powers conferred by the European Communities Act 1972 to add further layers of subordinate legislation to give effect to EU equality legislation. That has a great advantage for Governments, especially if they have a pressing parliamentary timetable, but it has the disadvantage of making it virtually impossible for Parliament to improve the legislation before it comes into force and for ordinary mortals to understand the meaning and effect of what is being done for their benefit, still less to translate the relevant legal principles and rules into practice. Here, I echo what has been said about tribunals, which are not well geared to deal with complicated cases of this kind.
Equality without discrimination is an axiom of fair and rational behaviour, but if it is not to remain theoretical and illusory, it needs to be underpinned by a proper law and put into practice. Let me give one example of the fatuity of the way in which we legislate. It is not about gender, but about race. For reasons which I do not need to elaborate on—the Minister knows what I mean because she answered my Written Question last week—a black person has to face a heavier burden of proof than a Sikh or a Jew in bringing a race or a gender case. It is completely fatuous and is because of the narrow, legalistic reading of the relevant race directive, which caused the Government to say that although it referred to race and ethnicity, it did not mention colour, so the burden of proof should not be eased for a black person in the way that it is for everyone else. That is simply one striking example of rubbish on the statute book that can be put right now only by primary legislation.
We fully support these regulations, subject to the reservations that I have given, on the basis that a crust is better than no bread. However, we look forward to receiving a more wholesome loaf and, if we may, to suggesting a recipe to some of the cooks.
I am extremely grateful for the welcome given to these regulations and I entirely take the point made by the noble Lord, Lord Skelmersdale, that all parties are united in their determination to outlaw discrimination. We are very grateful for his party’s support on that. I always feel slightly intimidated in debates like this when I am confronted by two Members of the Committee with very wide experience, both of whom are forensic but who come from slightly different angles. It has been a useful debate and I apologise for speaking for a rather long time. I did that not because we have anything to hide but because it is extremely important, given the complexity and technicality of these regulations and the fact that they are part of an ongoing discourse, to put on record the implications as far as we could anticipate them.
I am glad that the noble Lord, Lord Skelmersdale, recognised the sense of urgency, but he also raised some important questions about the timetable. I cannot add a great deal to what I said about the timetable as it proceeded past the autumn, but because we were discussing with Northern Ireland, under the Memorandum of Understanding, how we could take these forward, given the complications that had arisen, it was necessary for some debate to be had, so there was another delay in the process.
As for the summer consultation, it became more complex and wider in general because we bundled consultation on this with consultation on the Equality Bill. Moreover, the machinery of government changes; new Ministers had come in, inevitably with slightly different perspectives and views on how to add what they wanted to the consultation. However, the consultation period was for the full 12 weeks. That is the good practice as set up with the Cabinet Office, and we observed it in this case.
The noble Lord’s other important questions were particularly practical and it is important to clarify them. He asked, for example, about the costs to business. These changes are relatively minor compared with the sorts of requirements imposed on business since 1975 not to discriminate on the grounds of sex. Those were the big changes, and these are relatively small. He is, however, quite right. This is the sort of issue where we continue to listen to business and discuss. We will be watching the implications of the change.
The noble Lord also raised the issue of tribunal capacity. These cases will go to the courts and not to tribunals. Protection under the 1975 Act has existed since 1975. We can draw some comfort from the fact that there have been very few such cases. We therefore do not anticipate a great number of additional cases arising from this. Because the transgender population is so small, I think it unlikely that it would place a great burden on the processes.
I am grateful for that. My particular question surrounded the expression “heavily pregnant” and when “heavy” becomes “intolerably heavy”.
I feel particularly qualified to answer that. We do not define “heavily pregnant” in the regulations, and it would be an act of absolute foolishness to try to do so. It was an example. If a service provider is aware that a woman is pregnant and that it raises a health and safety issue, they should take that into account. We were not trying to draw a legislative boundary based on the size of the bump of the lady in question. It is just an illustration. The qualification for health and safety reasons is very pragmatic and common sense. I appreciate what the noble Lord said about how the regulations were proportionate in that sense.
I am grateful to the noble Lord, Lord Lester, for giving me advance warning of the sorts of issues he wanted to raise. I addressed some of them in my remarks on the specific changes we made to the definition of “harassment”, for example, in relation to the judicial review. As the two sets of regulations have virtually identical titles, perhaps I may say again, for purposes of clarification, that the regulations that actually introduce these changes are the Sex Discrimination Act 1975 (Amendment) Regulations 2008, which amend the 1975 Act. The regulations that we are discussing today come into force at the same time. Both sets are governed by the Sex Discrimination Act 1975, so the change of definitions will apply equally to both. Of course, they have only slightly different titles, so it is a bit confusing.
On religious harassment—
I am grateful for that, but the problem is that we are considering only one of two sets of regulations. My points go beyond this debate, which is why we hope there will be close consultation with the Commission. Both sets of regulations will have to be compatible with both directives. That is what I am really on about.
Absolutely. As I was going to say, because we have been so aware of the EHRC’s concerns and because we are in a process which will culminate in a new Equality Act, we are absolutely intent on continuing the dialogue that we have had with the EHRC. We know that there are outstanding issues; the noble Lord referred to some of them. A meeting is fixed to take place in the next couple of weeks. As we go through this process it is important that we keep close to this in the way that we said we would when we talk for example about insurance provisions.
We certainly anticipate and will observe the reaction of the industry, and we will certainly work closely with the EHRC on this. As I say, we have dealt with what we could in these regulations. We have been concerned about timing, infraction procedures and so on, for the reasons that noble Lords understand. This is absolutely an ongoing dialogue. We did not want to get into any more trouble through delay and so on. The EHRC, along with other lobby groups, obviously has a very important role in assessing the reconciliation of regulations and where we go from here, and we really do want to continue the dialogue. The regulations are a stepping stone to the broad sunlit uplands that we aim to reach in due course. It is very useful that we have that to look forward to and that we can take that dialogue forward.
The noble Lord made a couple of other points. This House has made clear its views on religious harassment on more than one occasion. We consulted on the case for explicit statutory protection on the ground of religion as part of discrimination law, and we will set out our position when we consult on the whole thing.
I think that I have addressed most of the issues that the noble Lord raised. I am grateful again for the way in which the Committee has responded to the regulations. I appreciate that the regulations have not been the easiest set to follow in some respects—indeed, they have a long and complex history—but I am grateful for the support that they have received and commend them to the Committee.
On Question, Motion agreed to.