Equality Bill

I have three amendments in this group: Amendment 24, which adds protection for those who are perceived to have a disability under the direct discrimination provisions; Amendment 38, which adds protection for those who are perceived to have a disability under the indirect discrimination provisions; and Amendment 54, which adds protections for those who are perceived to have a disability under the harassment provision. Amendment 7 addresses more widely amendments that I have tabled to Clause 13 with regard to disability. In her Second Reading speech, the Minister stated that the Government were proud to welcome the important change that widened the definition of direct discrimination and harassment. The result of this change would be that people who themselves did not possess a protected characteristic but were associated with someone who did would also be protected. This expanded definition, however, is only made obvious in the Explanatory Notes. I think that the noble Lord, Lord Ouseley, has said that he would like to take this expansion still further and ensure that there is an explicit statement in the Bill, in a prime location, that a reference to anyone with a protected characteristic includes an association with people with that characteristic, or even when it is mistakenly assumed that someone had the characteristic when they do not. This would therefore include any area of equality law where a protected characteristic was mentioned. Can the Minister tell us why the expanded definition to include associations and perceptions applies only to direct discrimination and harassment? Is there not a case that it should cover any form of safeguard designed to be given to a protected characteristic? Furthermore, I look forward to hearing the Minister’s response on why the definition itself has not been put clearly in the Bill. I think that we are all in favour of the broadened definition, and it is very much to be hoped that when the provision is enacted it will mean real help for those who previously may have suffered detriment and disadvantage with no hope of redress. Does the Minister accept that there is a worry that, if this is not clearly stated in the Bill, there is a risk that it will not bring the benefits that we all hope to see? There may well be a sensible explanation for this course of action, but I think that the Committee would very much appreciate hearing the Minister’s thoughts on it. In a similar vein, we have tabled our amendments as probing amendments to ask the Government for greater clarity. We welcome the fact that the Explanatory Notes to Clause 13 state that this definition is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic—for example, the person is disabled—or because the victim is wrongly thought to have that characteristic, such as a particular religious belief. This addresses an issue raised by Coleman v Attridge Law. The European Court of Justice ruled that the relevant directive applied to a mother who claimed protection under an EU directive, not because she herself was disabled but because she had a direct relationship with her child who was disabled. We have already discussed much of this on Second Reading, so I will not go into it in more detail now. However, the Government have expanded this judgment still further so that it includes carers who look after elderly people. The Disabled Charities Consortium also welcomes this change because, as it says, ""it moves the focus from the disability … to the allegedly discriminatory treatment itself and the reason for that treatment"." However, we have tabled these amendments to raise two issues. First, the DCC is looking for clarification from the Government about how they expect the provision to work in reality. The DCC is concerned about groups such as those who at some point in their life have suffered mental health problems—though perhaps only for a short period of, say, a few months—which are perhaps not considered to have had a long-term impact on their life. An employer may discover this and deny them employment because of it. If so, could they claim direct discrimination, as they have been perceived to be a disabled person, and would this come under the expanded definition brought in by the Coleman case? Can the Minister say how she thinks the perceived disability provision will work? Furthermore, can she explain why it was not thought necessary to include this provision in the Bill? In Committee in another place, this was discussed and the Solicitor-General said that she understood, ""that at the very first look at the clauses there is a transparency argument for making the protection explicit".—[Official Report, Commons, Equality Bill Committee, 16/7/09; cols. 253-54.]" We agree with that. The provision is welcomed all round, so it seems dangerous to hide it in the Explanatory Notes, which after all are not part of the Bill, are not endorsed by Parliament and cannot be relied on as an absolute description of the Bill. Without stating it directly in the Bill, there seems to be a danger that it might not be enacted or used, which would be a terrible shame. My understanding of the Government's defence is that they do not want to specify the provision in the Bill for fear of narrowing it. The worry is that specification would mean that people might interpret the Bill to mean that those forms that were not expressly stated were not covered. That may be correct, and it would not do to narrow the definition too much. However, the Minister must understand that we worry that without the provision being in the Bill, this too will narrow the scope and focus of the provisions that we all welcome. Can she reassure us that this will not be the case? How will this work in practice? What assurances can she offer the Committee that something that the Government have impressed upon us as one of the important changes that the Bill will introduce—the Minister mentioned it in her Second Reading speech—will not just be left in the Explanatory Notes?