Equality Bill
House of Commons Second Reading
11 May 2009
The Children's Society is a leading children's charity committed to making childhood better for all children in the UK. We welcome the Equality Bill, which we believe represents an opportunity to improve childhood outcomes and life chances.
It is our aspiration that children are recognised in law as being citizens of equal value and personal dignity to all others, protected from negative discrimination and less favourable treatment. The UN Convention on the Rights of Child embodies the legal and practical standards that would make this real and should be made directly enforceable in domestic legislation and courts.
The Equality Bill takes some significant steps towards simplification and harmonisation of discrimination law and makes important extensions to current protections. However, in order to maintain the strength of existing protections afforded to particular disadvantaged groups and ensure that children are adequately protected the Bill must be amended. Furthermore to put an end to discrimination in our society we believe significantly stronger enforcement mechanisms are required to secure compliance with discrimination law.
Below we set out our concerns about specific areas of the Bill and proposals for amendment.
For further information please contact: Katherine Hill, Parliamentary Adviser, The Children’s Society, email: T: 020 7841 4480 M: 07715 122 545
DUTY TO CONSIDER Socio-economic inequalitY (Part 1)
Clause 1 requires specified public authorities, when making strategic decisions such as deciding priorities and setting objectives, to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage, including inequalities in education, health, housing, crime rates.
We welcome this new duty that reflects The Children's Society’s belief in the importance of collectively striving to achieve greater social and economic equality. This belief is founded on the experiences of the children and young people we work with; as one child responding to The Good Childhood Inquiry’s call for evidence put it, ‘it is not fair that some people is rich and some are poor. No one help me and my family.’
Equality - Key Concepts (part 2)
Definition of Disability
Clause 6 simplifies the current definition of how disability operates in relation to “normal day-to-day activities” by removing the list of capacities.
The Children’s Society recognises that children’s impairments can create genuine difficulties in their lives but fundamentally many of the problems faced by disabled children are not caused by their conditions or impairments but by societal values, service structures and adult behaviour. Therefore we support a move over time, towards a legal definition of disability that better reflects the social model of disability which describes it in terms of the effects of prejudice and discrimination: the social factors which create barriers, deny opportunities and thereby dis-able people, rather than impairments or functional limitations.
However we recognise the inherent dilemmas in arriving at a workable definition of this nature and therefore welcome this amendment to the existing definition. We agree that the current list of capacities is problematic and in particular feel that it has often excluded those with mental health problems. If these capacities are to be removed however it is vital that detailed guidance is produced to provide a steer to courts and tribunals as to what a “normal day to day activity” including activity that may be affected by mental health issues. The ‘long-term’ requirement which is maintained in clause 6 (1) (b) can also be a barrier for those with mental health problems and we urge parliament to remove it.
Discrimination on the basis of immigration status
Discrimination on the basis of immigration status is a serious issue that is not addressed by the Bill. The refugee children we work with continue to face considerable discrimination both at the hands of individuals in terms of the prejudice and harassment they face in their daily lives, and at institutional level in the less favourable standards of treatment they receive from public authorities. These children do not have control over their immigration status yet the discrimination that often results from it means that they do not get the services they are entitled to.
An example of this is the lower standard of care unaccompanied asylum-seeking children often receive from local authorities. Despite clear government guidance and case law, many unaccompanied children are still accommodated under Section 17 rather than Section 20 of the Children Act 1989, which means they are not given a named social worker, care plan, or leaving care support. In addition some local authorities “de-accommodate” asylum-seeking children in their care after 13 weeks and put them straight onto leaving care support on their 16th birthday, unlike other looked after children. This means they receive a lower standard - but cheaper form - of care than other children, a practice that has been condemned as discriminatory by the Children’s Commissioner.
This gap between law and practice also occurs in healthcare, where children are denied their right to register with a GP, and in education where children can be made to wait significant amounts of time for the school places to which they are entitled. We urge parliamentarians to consider how protection from discrimination can be extended to refugee children.
PROTECTION CHILDREN FROM AGE DISCRIMINATION (PART 3)
Part 3 of the Bill prohibits discrimination, harassment and victimisation by people who supply services (which includes goods and facilities) or perform public functions. Clause 26 (1) (a) exempts children under the age of 18 from this protection on the basis of age.
The Children's Society is a member of the Young Equalscampaign, whose report Makingthe case (circulated with this briefing) provides evidence of systemic age discrimination against children in both public and private spheres, including healthcare, child protection, access to justice, public leisure facilities, shops and restaurants, and public transport. We believe the Government’s decision to exclude children from these this provision represents a missed opportunity to offer children protection against less favourable treatment on grounds of age and reduce the inequalities that currently impact on them.
We also fear that excluding children may prove deeply damaging to the relationship between children and wider society.
The Good Childhood Inquiry, set up by The Children's Society to promote an inclusive debate about the nature of modern childhood, received evidence from children concerned about the discriminatory attitudes that some adults display towards them. Links were made between these individual attitudes, and a perception of general societal attitudes towards young people and of stereotyping, as the quotes below illustrate:
‘Bullying and scared of crime which is exagerated by media who overestimate the figures and levels of crime. Also young people in general are blamed for Britain’s “rising crime” (according to media) this makes people scared and frightened of young people.’
‘People thinking we are all the same e.g. a teenager might have been rude to someone, elderly, person etc. So they think we are all like that and then be rude to other teenagers.’
The UN Committee on the Rights of the Children recently conducted an examination of the UK’s record on children’s rights. In its concluding observations, published in October 2008, it drew particular attention to this issue recommending ‘that the State party ensure full protection against discrimination on any grounds, including by: a) taking urgent measures to address the intolerance and inappropriate characterization of children, especially adolescents, within the society, including the media…’
The exemption of under-18s from protection from unlawful age discrimination must be removed.
PUBLIC SECTOR EQUality DUTY (PART 11)
The Children's Society welcomes the bringing together of the three existing equality duties into a single Public Sector Equality Duty (clause 143) and its extension to the characteristics of religion and belief, age and sexual orientation.
The laudable ambition for the public sector duty is that it should be a vehicle to promote the human dignity and equal worth of every individual in our society and strongly believe that it should apply across all public services without exception. Thedecision to exclude under-18s from protection from unlawful age discrimination in Part 3 will, in our view, significantly weaken the public sector equality duty, by rendering its first ‘limb’ ineffectual for children in relation to age discrimination.
More favourable treatment for disabled people
We are concerned that sub clause 143 (5) represents a regression in protection for disabled people, including disabled children. The concept of more favourable treatment has its origins in Disability Discrimination legislation, first appearing in DDA 1995 49A(d) which requires public authorities to have due regard to the need to take account of the needs of disabled people, even where this involves more favourable treatment. Currently, the Equality Bill only provides that public authorities may treat people more favourably (to meet their needs). For disabled people this insufficient as their needs, associated with their impairments, must be taken into account into order to ensure equality of opportunity.
Disability Equality in Schools
The Bill also makes provision for a series of specific duties to sit underneath the general duty which will be set out in secondary legislation. We seek assurances that the existing specific duties set out in the Disability Discrimination Act 2005 which require schools to promote disability equality and involve disabled pupils in this will be maintained and strengthened.
Despite the good intentions behind the existing provisions the experience of many disabled children and young people continues to be that they are rarely consulted and involved in decisions about their education or the development of services.
In The Children’s Society’s experience many disabled children and young people are not involved in the development of their personal educational plan, not invited to their transition planning meeting and often not consulted about changes of school. The Progress on Safeguards for Children Living Away from Home Report found that in schools children are not systematically consulted on matters which affect them and many authorities are failing to meet their duties particularly in relation to young people with communication impairments or complex needs.[1] In Mencap’s recent survey of 40 schools, only two schools reported that they have involved pupils in developing the Disability Equality Schemes.[2]
Age – exemption of schools and children homes
The Bill exempts schools and children’s homes from this duty in respect of age discrimination, in schedule 18 (1) (2). We believe this is short-sighted.
Schools have a unique role to play in leading the public sector’s drive towards promoting more positive attitudes towards children and young people and improving relationships between generations. In particular they can contribute greatly towards developing intergenerational projects that foster greater tolerance, understanding and respect between old and young people.[3]
The need for more to be done in this area was recognised by the Government in April 2009 when it announced a £5.5 million programme to fund ‘12 intergenerational projects across the country where young and older people can engage with each other on equal terms, break down barriers and challenge negative stereotypes.’[4]The exemption of schools and children’s homes from the public sector duty in respect of age discrimination appears to runs counter to this and will act as a barrier to promoting this approach more widely.
Immigration exemption
We seek further clarification about the rationale behind schedule 18 (2) (1) which means that the UK Border Authority, when taking immigration-related decisions, will not need to give due regard to the need to advance equality of opportunity for people of different races, religious beliefs or age when taking those decisions, (it will still be required to give due regard to the need to advance equality of opportunity for disabled people, for men and women, for people of all sexual orientations and transsexual people when making those decisions).
Multiple discrimination
We are concerned that the Bill does not go far enough to realise one of the potential benefits of an integrated duty; making it easier to address the incidence of multiple discrimination, an area that discrimination law to date has failed to tackle.
In Just Justice, The Children's Society’s report of a four-year research study into black young people’s experiences of the youth justice system in England one young man described his experience of multiple discrimination in these words:
‘Its tough being black, young and Muslim… As a black person you suffer racism. As a Muslim they see you as a terrorist. As a young person they think you are up to no good.’ [5]
We urge parliamentarians to amend the Bill to address multiple discrimination
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Charity Registration No. 221124
[1] Stuart and Baines (2004) Progress on Safeguards for children Living Away from Home: a review of action since People Like Us Joseph Rowntree Foundation
[2] Mencap (2008) Just not a priority: schools and disability equality
[3]National Foundation for Educational Research (2008). Intergenerational practice:a review of the literature. Age Concern, accessed 10 March 2009,
[4] DCSF Press Notice (20 April 09) £5.5 million to help close the widening generation gap
[5] Ofutu, J (2006) ‘Acting Strangely’: Young black people and the youth justice system, p. 40