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March 03, 2010

The Equality Bill is a licence to discriminate - Jan Davies explains why

Posted by Jan Davies

The Equality Bill will make discrimination in the workplace worse not better. Or so argues solicitor Jan Davies.

The Pope is usually good news for journalists. Reporting his pronouncements does not require research or much leg work, and his recent attack on the Equality Bill going through the House of Lords was a gift for those columnists who did not wish to leave their firesides to write their articles for the Sunday papers. The issue of whether the Catholic Church, the Church of England and various Protestant churches should be free to make decisions when employing someone on the basis of that person's faith or lifestyle made good if predictable copy.

The House of Lords debate in committee was also good fun, with impressive contributions from the Bishop of Winchester and Rabbi Julia Neuberger (even though she subsequently appeared to be asleep), and included a terse observation from Norman Tebbit that the choice was "whether we walk in the fear of the Lord or the fear of Brussels" - he was quite clear which way he was walking! The Bill reproduces some of the language in the European Union Employment Framework Directive, and it would be hard not to see the Bill as a response to a diktat from Brussels, were it not that Harriet Harman gives the impression that she would be introducing it even without any prompting from the E.U.

The argument over religion makes good copy and is easy for the readers of newspapers to understand and get indignant about. Everybody on this subject can have an opinion. But in focussing on such questions as whether the Catholic Church should be forced to have women priests it is easy to lose sight of the main mischief of this Bill: the intrusion of a bureaucratic monster, the Equality and Human Rights Commission, into offices, bed and breakfast establishments, even perhaps open air markets.

Many people have been unaware that in 2007 the Equality and Human Rights Commission was set up as a result of the Equality Act 2006. It was supposedly designed to ensure that there is "mutual respect between communities based on understanding and valuing of diversity and on shared respect for equality and human rights". A community was defined as a group or class of persons sharing common attributes such as age, gender, race, religion or belief and sexual orientation, even persons undergoing gender change. A group could be labelled as a community even if they did not identify themselves as a separate group. Our population was to be seen as divided into different groups, even when a group of people might not wish to be considered in this way.

There is, interestingly, no definition of what is a religion, and since "belief" is also a label to use, it may be presumed that any cult, however, weird or pernicious, is entitled to protection.

The Equality Commission already has the power to issue a three year plan for its activities, it should do research, issue publications on equality and diversity and can issue notices to employers and others that an "unlawful act" has been committed with instructions for what has to be done. A person can enter into an agreement with the Commission on action to be taken in relation to such a notice, and entering into such an agreement is not to be considered an admission of having committed an offence. This sounds similar to what a person is told when given a Fixed Penalty Notice for shoplifting: it does not count as a criminal conviction and the person is told this. What people are not told is that records are kept of fixed penalties and when someone wants an enhanced criminal record check to be done, or in future when they apply to the vetting and barring agency (the Independent Safeguarding Authority) for a certificate the details resurface.

The effect of the Commission's notices is bound to be that guilt is in effect decided behind closed doors, with people too frightened to challenge the interpretation put on a situation by an all-powerful authority. Going to court, unless someone feels very strongly, is not worth the risk.

Most job application forms these days for any sizeable organization have a form demanding the application to state his or her "ethnicity". By ethnicity the questionnaires very obviously means colour. Those who design the questions are not interested in anything very subtle. There are options such as "White British", "Irish" (the Welsh are usually omitted, much to their disgust), "Black", "White Other", "Asian".

Nowadays it has penetrated the questioners' heads that it may be wise to split "Black" into "Black African" and "Black Caribbean", and to split the "Asian" category: they have realized that certain groups just do not like each other very much and do not wish to be identified together. The intention, however, remains a crude one of identifying not ethnicity but colour. There is no such ethnic group as "white". I usually deal with such forms by ticking the "other" box and scrawling over it something like "I do not label myself in this way", leaving those who would like to come and see me with a colour coding chart to do so. The question is offensive. It implies that we are all stuck in the 1960s, in the days when Wole Soyinka wrote his poem The Telephone Conversation, in which a landlady asked him on the telephone "Are you dark...or very light?"

I do not myself believe that it is possible to create a working or social environment in which there is respect unless we are all allowed to forget about colour and differences. No one is likely to change the way they think about other people because of some commission bullying them.

The Commission would like to see all organizations with more than 250 employees instituting "diversity training". We were subjected to this when I was working at the Crown Prosecution Service, and dire it was too. Everyone was forced to spend an entire day looking at case studies of imaginary situations, none of which seemed to bear much relationship to our own experience. Given the workload on our desks and the expense of withdrawing staff to take part in such an exercise, it seemed a waste of time. The danger is too that when someone from an "ethnic minority" in any office turns out to be lazy or incompetent, but unapproachable and prickly, someone who gives every indication that he will "play the race card", then management will steer clear of that person and a bad situation will be allowed to fester.

Another danger may be that no one will want to get close to a "diverse" colleague. Communication between colleagues becomes stilted and inhibited by the fear of causing offence. Someone may find himself isolated at work: colleagues are far too nervous to invite him to the pub at lunchtime.

The Government insists that the Equality Bill it is now pushing through the House of Lords is only a consolidating bill. I do not agree. The Bill introduces the concept of "positive action" in relation to employment (Sections 157 and 158). Employers who are faced with two potential employees who are equally qualified for a job may decide to employ the person who is from a disadvantaged group just on the basis of a characteristic like race or gender, yet should not have a policy of always treating people with that characteristic more favourably than others. This is vague, and the Government insist that it is permissive and imposes no obligation on the employer, but the provisions are a cause for concern when taken with all the monitoring that is going on, and the way in which the Commission, behind closed doors, will be setting targets for employers. If the section were to be of no effect, it would not be in the Bill and the Government would not be seeking so hard to promote it.

The Commission has been busily putting out briefing notes for MPs and members of the House of Lord. Its Parliamentary briefing, "Positive Action", says

Positive action is a tool available in law to help achieve greater diversity, allowing employers to target training and encouragement at under-represented groups.
It gives examples: a construction firm runs a mentoring scheme in which female recruits have regular support meetings with a senior member of staff; a police force holds recruitment open days specifically for potential female and ethnic minority applicants; a law firm states on its recruitment advertising that it welcomes applications from women and ethnic minority candidates. I fail to see how any of these could be anything other than treating certain groups more favourably than others. It is simply poisonous and will lead to resentment.

Yet the Conservative party seems to be stuck like rabbits in the headlights. There is not the opposition we might have expected. Lord Hunt of Wirral said in the House of Lords that

a clause which allows a decision to be made on a protected characteristic for a legitimate reason is very sensible,
though he did go on to say that if the policy is broadened and becomes like positive discrimination it will do more damage than good to the cause of equality in a society which believes in a meritocracy. Yet we do not need this Bill. Employers can already take decisions when faced with candidates for employment of equal worth. We do not need this law at all.

I wonder whether Lord Hunt has ever worked in a situation where one colleague is seen to weasel out of difficult tasks because management are too scared of being taken to a tribunal if they deal with the person. The Government is always talking about wanting to "send a signal", and this Bill sends a signal to all public bodies, councils putting work out to tender, even some private firms, that favouring one group over others is acceptable.

The Minister for Equality, Michael Foster MP, is reported as saying that "churches should be lining up their lawyers in anticipation", which perhaps is an indication of the glee of other secularists in Parliament. I fear that it is not only the churches who can anticipate trouble. The council strapped for cash anxious to find the best possible deal for its rubbish collection, the barristers' chambers trying to recruit the best pupil without finding themselves the subject of litigation, the medium sized business anxious to deal fairly when recruiting staff but finding that the deprived area where their business is sited only produces feckless and illiterate applicants - all may have problems. The keeping of records about the ethnicity of staff already has a deleterious effect on the relationships between work colleagues. This Bill is only going to increase resentment and put back by another decade the emergence of the colour blind society many of us would like to live in. The Bill is in effect a licence to discriminate.

Jan Davies has been practising as a solicitor in the criminal courts for over 20 years. She was a founder member of Reading Solicitors Chambers and between 2001 and March 2007 was a senior crown prosecutor in Oxfordshire. She now practises as an advocate in both magistrates and crown courts as an associate member of Reading Solicitors Chambers. She is the author of The Criminal Advocate's Survival Guide (Carbolic Smokeball Company, 2007).


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Why should inegalitarian bigotry be protected because it is justified by some ancient piece of religious barbarism. The state should force the Roman church to ordain women. If it refuses then it should lose its charitable status and get no more aid for its schools. If there had been women priests in Ireland they would not have sexually molested the altar boys. Why should bishops, chief rabbis and imams all be male when women hold office in the judiciary and thee military. The only way Britain will ever civilize and integrate its backward Muslims is by forcing sexual equality on them and even openly gay muezzins. Equality is the best troad to Gleichshaltung.

Posted by: Hilary Trevelyan at March 3, 2010 11:34 PM
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Enforcement in this way inevitably leads to conflict with the fundamental right to freedom of expression belief and (heaven forbid) thought. If you do not like the way an organisation is run, do something about it as a member in a democratic way. If you don't like its principles don't join in the first place. I may not like what you believe but I defend your right to believe it. Ok the church is not a democracy but neither is God (if you believe in the divine).

Posted by: Graham Pressler at March 5, 2010 06:34 AM
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At last we have a white whose leader says all the things the non-white professionals think! [I happen to be female too.]

Posted by: C-C Dawson at March 5, 2010 08:19 AM
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In the U.S. this is old ground, though the ground remains muddy and much trampled. I was once rejected for a job because I was neither black nor Mexican, and the Affirmative Action people were insisting on hiring one or the other. I responded that I was half-Polish. Did that count? Honestly I'm not at all sure they knew what that meant, since it wasn't in their "race" categories and they were entirely lacking in a sense of humor.

When, oh when, can we get down to looking simply at whether the person can do the job? It seems to me that everything else is irrelevant, including so-called "diversity" and "equality." If we were in fact all equal, we would not have a percentage of the population meeting an early demise because of their own stupidity.

Martin Luther King summed it up nicely with his comment about judging others on "the content of their character," rather than on the color of their skin--or on any other characteristics, for that matter!

Posted by: Dr Gaines at March 9, 2010 11:13 AM
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Hilary Trevelyan,

Your suggestion sounds dangerously close to wanting to abolish sex altogether!

Posted by: Robert H. Olley at March 23, 2010 11:50 AM
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Hilary Trevelyan, that is prejudice pure and simple. How do you know that there would have been no child molesting in Ireland if there had been women priests? The same miscreants would have been in place and committed the same crimes. Are you advocating that all priests be female? The claim used to be made that this molesting comes from the celibacy rule which somehow unhinges the RC clergy. However all other Churches have married clergy, and yet there have been cases of child molestation in them too (perhaps not to the same extent but who knows). Married people can be pedophiles, and parents have molested their own children. There are cases of child molestation in schools, strictly secular ones at that. My take is that such predators are likely to be attracted to positions of trust, whether it be priests, teachers, scout leaders etc where they can both have access to children and be in a position where such access, up until now, would go unremarked. Your claims about the Catholics are just assertions based upon your own personal prejudice and nothing more. I am not in anyway shape or form Roman Catholic by the way. Frankly whether or not the Catholics have women priests or not does not affect me, or you for that matter. Unlike this sordid organisation, the Catholic Church can have no direct effect upon me unless I decide I want to become one of them.

There is little hope that Muslims will have such things enforced upon them. They are deemed to be an “ethnic minority” (even though some are “white British” who have converted). That will put them off the list. I cannot see any real investigation into them. How many of those carrying placards calling for the beheading of Danish cartoonists, or anyone else who “insults Islam” have been charged hate crimes? All of this really licences the particular organization How about our No 1 hypocrite Michael Foster MP be forced to hire members of the BNP into his own office? I'd wager he has none currently working there, and the BNP most definitely fit the “community” criteria. How about insisting the Guardian and the BBC hire significant numbers of social conservatives? Or insisting that both the Labour and Conservative party offices have staff members from the other side? Or indeed, perhaps we should challenge the notion that one needs to be a card carrying member of a party to stand as the party’s endorsed candidate at an election? This is at the level of saying that the Catholic Church should employ non-Catholics (say Muslims, or indeed anti-Catholic atheists such as your self) within the Church. This sort of thing rapidly becomes absurd. I doubt there are many positions now where women and ethnic minorities are NOT employed – there are a significant number of women engineers and lawyers for example, and most definitely Black, Asian (both south and east) people working in significant numbers in all these areas. So what exactly is the point of all this? It is at least 40 years after its time. More likely it is to give pernicious QUANGOS and social engineers a blank cheque to interfere wherever they deem fit, according to their own prejudices. In that respect it is actually much more like the Spanish Inquisition, which kept increasing its “areas of concern” than anything else in our society today. Please think about it.

Posted by: PT at March 29, 2010 12:15 PM
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C-C Dawson, I'm afraid I didn't understand your post. Are you agreeing with, or disagreeing with Jan Davies?

Posted by: PT at March 29, 2010 12:18 PM
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That was a lovely read.

The pope is the George Bush of religion.

I think people forget that every"one" is unique, segregation will only lead to conflict between "groups".

Posted by: Solicitor Liverpool at August 6, 2010 06:30 PM
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