Draft Equality Act 2010 (Amendment) Regulations 2023

Robin Millar Excerpts

Wednesday 6th December 2023 General Committees

[Robin Millar (Aberconwy) (Con)]

I thank you, Mr Hollobone, for the chance to speak in this debate, even though I too do not have a vote. Can I extend my thanks and gratitude to hon. and right hon. Members present? I know that these Delegated Legislation Committees are sometimes a bit of a chore, and as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has said, this maybe is not the best vehicle for examining some of the detailed legal considerations. Certainly it has been a challenge to me as I have looked at it. However, I do have some concerns about regulation 3 of the regulations before us.

I echo the concerns of my hon. Friend the Member for Penistone and Stocksbridge that the existing provisions will be, in her words, on steroids as a result of this. We all recognise the importance of the Equality Act 2010, and the provisions and protected characteristics within it. Likewise, we recognise the importance of provisions for addressing direct discrimination and indirect discrimination, but this seems to extend that further to be an associated indirect discrimination. I hence have this concern about a kind of gold-plating of the regulation that we have, which I would suggest works pretty well at the moment.

I have two particular concerns: one is to the direct effect and the other is to desirability. I will take direct effect first. The Minister proposes to make these regulations under section 12 of the Retained EU Law (Reform and Revocation) Act. Now, that section gives a “relevant national authority”, in this case the Minister, power through regulations to reproduce the effect of any retained EU law that has direct effect. That is, EU law that, under section 2 of the European Communities Act 1972, has legal effect without further enactment. As the explanatory notes and the REUL dashboard make clear, regulation 3 reproduces the effect of the case that we referred to as CHEZ previously, which has been described by my hon. Friend the Member for Penistone and Stocksbridge. That decision expands the scope of indirect discrimination under the Equality Act, so as to confer a right of action on claimants who suffer alongside victims of indirect discrimination, even if the claimant does not share the same protected characteristic.

It is therefore unclear to me whether this judgment has direct effect in UK domestic law, and it follows then that it is unclear whether the Minister has powers under section 12(8) of the REUL Act to reproduce the effects of CHEZ. I ask the Government to delay enactment of the regulations until such time as this question has been fully explored and satisfied or, if I might refer to my hon. Friend the Member for Stone, at least until we have had time to be regaled by him on the points of law on that matter.

I will turn to the question of desirability. Regulation 3(2) provides that persons with the “relevant protected characteristic” must suffer “particular disadvantage”, and people without it must suffer “substantively the same disadvantage”. This begs the question, what does “substantively” mean, in the Government’s view? Does it mean that the disadvantage has the same cause or that it is the same extent of disadvantage? It would be helpful to clarify this. This is important because regulation 3 does not actually safeguard the concept of discrimination, in so far as I understand it. The purpose of indirect discrimination is to protect minorities in particular, but instead of protecting minorities particularly, this new law protects anyone generally who suffers disadvantage. Why are the Government trying to protect discrimination by effectively diluting it into non-existence? I am happy to be challenged and corrected on these points but this is my understanding of it.

I will give an example. The law currently sets height requirements for police candidates, and says that those are indirect discrimination because they would put women at a particular disadvantage. The Government want to expand the law, it appears, so that short men will have the right to sue for sex discrimination because they then suffer the same disadvantage. It begs the question whether it is the purpose of equality law to protect short men or anyone who suffers a comparable disadvantage. There are important ramifications: I am concerned this new law will expose employers to unlimited damages, if they are then found liable. As somebody with an engineering, rather than legal, background, I hope my colleagues will forgive me if I have stumbled over this, but how will employers keep on the right side of the law? I am looking for practical application here.

[Stuart C. McDonald]

I welcome the incorporation of this judgment and I will give the hon. Gentleman a different example. Let us say that an employer has discriminated against LGBT members of staff, and actually that discrimination includes somebody who is not, in fact, LGBT, but is perceived by an employer to be. This judgment would surely then allow that person to also seek damages. I do not think that this would be objectionable from any point of view, would it?

[Robin Millar]

The hon. Gentleman has done two things: he has exposed my engineering, rather than legal, background, and he has raised a very good question, which I look forward to hearing people with a legal mind tear apart and pick apart in consequence. I thank him for that.

[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]

My hon. Friend is suggesting that we revoke the legislation that we are considering, which provides the protections that I set out in my opening speech. It is certainly the Government’s view that it is important that we retain those protections, whether they relate to discrimination against women going through pregnancy, disabled people or others with protected characteristics. To clarify, the way the instrument interprets the CHEZ ruling is not new legislation. As I set out, the CHEZ judgment was before the implementation period, so it is already a basis on which judgments are made. Because it falls under the Retained EU Law (Revocation and Reform) Act, this statutory instrument just puts that on a domestic footing.

[Robin Millar]

I fully acknowledge the challenge of debating such a detailed subject in this setting, but given that the ruling exists, why do we need to enact the measure through regulations now? There is provision in place.

[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.