Draft Equality Act 2010 (Amendment) Regulations 2023

Miriam Cates Excerpts

Wednesday 6th December 2023 General Committees

[Miriam Cates (Penistone and Stocksbridge) (Con)]

Thank you, Mr Hollobone, for the opportunity to speak in this Committee. I do understand the Government’s desire to ensure that there is no watering down of equalities law following Brexit and the retained EU law Act, but it appears to me that this statutory instrument is not only unnecessary but could have some serious and unwanted consequences by creating almost a carte blanche for individuals to bring indirect discrimination cases on almost any grounds and with unlimited potential damages. Far from protecting British citizens from discrimination, it would undermine the very idea of discrimination itself. I would be grateful to the Minister if she could answer a few questions about this legislation, particularly about regulation 3.

The explanatory memorandum and the retained EU law dashboard explain that regulation 3 reproduces the legal effect of a European Court of Justice case, which is referred to as CHEZ for short in the document. Briefly, in that case, a woman was living in a Roma-majority suburb of a Bulgarian town. She herself was not Roma. The electricity company installed electricity meters at 7 or 8 metres above ground level in the suburb—much higher than the usual 2 metres. That was deemed to be based on the fact that the population was majority Roma. The non-Roma woman alleged that she had suffered direct discrimination based on race. The Court found that she had suffered indirect discrimination on the basis of race. In that context, she herself did not have the protected characteristic of race to which the discrimination pertained. However, she was allowed to seek equivalent relief as if she did, because she had suffered the same negative impact as someone who was being discriminated against on the basis of their race.

My understanding of that CHEZ judgment is that it applies to the Equality Act now, has been applied twice by the employment tribunal and will remain domestic law by virtue of section 6 of the European Union (Withdrawal) Act 2018. There is no indication that the courts will overturn this, so my first question to the Minister is this: why do the Government believe that it needs to be enshrined in primary legislation?

The power to reproduce under section 12(8) of the Retained EU Law (Revocation and Reform) Act applies only to EU law that directly formed part of domestic UK law, without the need for implementing UK legislation. There is nothing in the CHEZ judgment that suggests it does have that direct effect, so why do the Government think that it does have that direct effect and therefore can be enshrined today in primary legislation?

My understanding is that the existing law on direct discrimination is enough to protect against this “same disadvantage” idea in cases like CHEZ. For instance, if a group of friends went to a restaurant and were refused service on the basis of the ethnicity of one of the members of the group, all of them would currently have a claim for discrimination. If that is enough to prevent that mischief in question, why are the Government proposing a new law that will put the existing law on steroids and have such disproportionate, unintended and unpredictable consequences?

My understanding is that, on the whole, UK courts have disregarded CHEZ because the existing law on direct discrimination does the job, and also because the real purpose of that CHEZ judgment was very specific: the Court wanted to address anti-Roma discrimination in central and eastern European member states. That is clearly not applicable here, so why are the Government treating this narrow, specific case-law judgment from another country as the basis for a general new law in primary legislation in the UK? I would be very grateful to the Minister if she could provide an answer to those questions.

In summary, the effect of this statutory instrument will be to undermine our understanding of discrimination rather than to strengthen it, because it will undermine our understanding of protected characteristics—which are there, obviously, to protect minorities—by gold-plating an obscure piece of foreign case law that essentially allows someone without a protected characteristic to piggyback off someone who does.

I very much regret that the Government have brought this legislation today. I have had engagement with the Secretary of State and I do believe that there is now some concern about this among Government. I understand that there is no technical case for asking for an adjournment of this debate today, but I think that that is a shame, because I do not think that it has been properly considered. I ask that the Minister urgently considers the long-term and unintended consequences of this measure, including the cost to businesses, because it will make it on to the desks of HR officials across the country and could potentially have quite a serious chilling effect.

--- Later in debate ---

[Miriam Cates]

My understanding is that the protection already exists, as I explained in my speech, but the point of this new legislation would be to allow someone who is outside and not connected with that group of people who have been classed, perhaps incorrectly, as LGBT by the employer to claim the same discrimination. We already have that protection in our law, but this would put it on steroids, for additional people to claim who do not necessarily suffer the disadvantage at the moment.

[Robin Millar]

My hon. Friend, as usual, makes a thought-provoking point. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East talked about the limitations of a Committee discussing detailed legal points.

To return to the practical application, how can a human resources officer foresee all the individuals who might suffer some disadvantage under these regulations and bring a claim in the employment tribunal? That is unworkable. In particular, how will employers satisfy themselves that the disadvantage is justified in each case, when they cannot possibly foresee each case?

I am grateful for your indulgence, Mr Hollobone, and that of the Committee. I think these are profound questions. I tread softly and lightly into this space, but I think it has been important to raise these issues. I urge the Government to respond to them in a timely fashion so that these regulations are not enacted in haste.

--- Later in debate ---

[Maria Caulfield]

The reason is that the provisions currently fall under section 4 of the European Union (Withdrawal) Act 2018 and that if we do not replicate them under the Retained EU Law (Revocation and Reform) Act, they will fall. That would mean that protections for women who are pregnant or breastfeeding fall at the end of the year. That is why we need to replicate them.

Let me touch on the point about whether the measure provides expanded powers—I think “power on steroids” was the phrase that was used. The legal advice is that CHEZ can be interpreted as already giving horizontal rights, so we are not introducing such rights through this statutory instrument. Even if it did not give such rights, section 13 of the Retained EU Law (Revocation and Reform) Act, which Parliament voted on, gives Ministers powers to resolve ambiguities and remove doubt or anomalies to facilitate the improvement of the law. That is the power that that Act provides. We believe that the CHEZ ruling already gives horizontal rights, but even if it did not, the Act gives leeway to Ministers to tidy up those provisions.

[Miriam Cates]

Is the Minister saying that she believes that the legal probability is that the CHEZ judgment already has direct effect in UK law? On my understanding, that is the only situation in which the power can be used to reproduce the judgment in primary legislation. It is not clear to me that it did have direct effect. At the moment, there is clearly no case in the UK courts to suggest that.

[Maria Caulfield]

The legal advice is that it is arguable that it can be interpreted as giving horizontal rights, and that is why the instrument reflects that.

The basis of this argument was that we believed that, in leaving the EU, it was fundamental that Parliament made decisions about which laws we retained, repealed or amended. That is exactly what we are doing today. We may differ over whether we believe that the protections are needed or whether they go too far, but it is now Parliament that is making that decision.

[Maria Caulfield]

I take my hon. Friend’s point, but if we had not left the EU, the CHEZ ruling would still be the basis of the way in which decisions are made right now on discrimination cases. Any law can be challenged in courts and precedents can be set, but that does not mean that we should not set out the law as we determine it should be interpreted. Obviously, case law can change that, but the CHEZ case was back in 2015, so it falls under the European Union (Withdrawal) Act. We have decided as a Government to retain those protections. Let me set them out for hon. Members: they are around maintaining equal pay for pregnant women; protecting women from less favourable treatment because they are breastfeeding; and helping pregnant women facing discrimination with being able to return to work.

[Miriam Cates]

I completely agree with the Minister about the need to protect equal pay, pregnant women and so on; I do not think there would be any disagreement on that. The problem is the unintended consequences.

I will come back to the example of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. At the moment, let us say that a group of people were thrown out of a pub because of a homophobic landlord who thought that they were all LGBT. Let us say that they were not LGBT; the people who were not would currently, under UK law, have a case for discrimination, and rightly so.

The problem is that the effect of this legislation would be that if someone else walked into the pub who was not LGBT, and the landlord did not think he was LGBT but still threw him out, he would be able to claim that he suffered the same effect of discrimination, even though he did not have the protected characteristic. That is the impact. The lady who won the CHEZ case was not Roma, and nobody thought that she was Roma. She experienced the same discrimination as Roma people, but she was still able to claim. That is the difference between existing law and what this legislation potentially puts into practice, and that is the unintended consequence.

[Maria Caulfield]

That is open to interpretation, and that is exactly what the courts are there for: to decide how existing laws are interpreted. However, the CHEZ judgment is part of existing case law. It is the basis of how discrimination is determined right now. If we did not have this instrument and we had not left the EU, that would continue to be the case. At the end of this month, if we do not retain the law, those protections for pregnant women, disabled people and those with protected characteristics will fall completely. The CHEZ judgment is actually the basis of case law.