Saturday, 9 May 2009

Smoke & Spin

I mentioned earlier this week about the UK Gov finally stating in their press release that breastfeeding would be covered in the upcoming Equalities Bill.
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I had hoped to be able to take some time and get some answers from my MP, amongst others, as to what the Bill actually proposes. Unfortunately, I'm finding more and more comment and opinion pieces, all over the internet and mothering forums, on how 'great' it is that breastfeeding is finally going to be protected in England & Wales, and even suggesting MPs need letters telling them to support the Bill.
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In light of this, I think it's important to make some things very clear to you all about the wording of the bill. And note, this is the wording of the bill itself, not the wording in media press releases or shiny Government published leaflets.
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Breastfeeding is mentioned in 2 places in the proposed new Bill, Clause 16 and Clause 17. Clause 17 is actually pretty good - it's about protection in the workplace, so that a Mum must be treated equally if she is breastfeeding. Fab.
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Clause 16 is about treatment outside the workplace, and reads:
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16 Pregnancy and maternity discrimination: non-work cases
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(1) This section has effect for the purposes of the application to the protected characteristic of pregnancy and maternity of -
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(a) Part 3 (services and public functions);
(b) Part 4 (premises);
(c) Chapter 2 of Part 6 (further or higher education);
(d) Part 7 (associations).
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(2) A person (A) discriminates against a woman if A treats her less favourably because of a pregnancy of hers.
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(3) A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her less favourably because she has given birth.
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(4) The reference in subsection (3) to treating a woman less favourably because she has given birth includes, in particular, a reference to treating her less favourably because she is breast-feeding.
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(5) For the purposes of this section, the day on which a woman gives birth is the day on which.
(a) she gives birth to a living child, or
(b) she gives birth to a dead child (more than 24 weeks of the pregnancy having passed).
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(6) Section 13, so far as relating to sex discrimination, does not apply to anything done in relation to a woman in so far as.
(a) it is for the reason mentioned in subsection (2), or
(b) it is in the period, and for the reason, mentioned in subsection (3).
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(7) In this section and section 17, a reference to a woman being treated less favourably is a reference to her being treated less favourably than is reasonable.
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Notice the reference to breastfeeding in public spaces there? No, me neither. All I see is one line that says categorically "We mean breastfeeding is part of this." Which is nice...but, and oh this is a lovely big but.. I do see specific mention of 26 weeks. That's six months. This is the confusion that Downing Street spin sparked last year, when they made an announcement that it would finally be legal to breastfeed a baby under six months in England & Wales. Total claptrap as it is legal to breastfeed in public spaces in England & Wales. When challenged, the Gov admitted that there was no limit to Maternity protection per se. And their press release says 'no age limit'. Keep that in mind, I'll get back to this.
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The issue is not about it being legal to breastfeed in public spaces, the issue is about being protected from inteference whilst you are going about your lawful business - ie, feeding your child.
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So where is breastfeeding in public spaces in Clause 16, the very Clause to be used about breastfeeding in public spaces? I'll tell you where it is, it's in the examples:
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Examples
• A café owner must not ask a woman to leave his café because she is breast-feeding her baby.
• A shopkeeper must not refuse to sell cigarettes to a woman because she is pregnant.
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So there we have it. Compare it to the Scottish wording:
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2. The purpose of section 1 of the Bill is to safeguard the right of a child under the age of two years of age to be fed milk in a public place or licensed premises, where the child otherwise lawfully permitted to be. Accordingly, the Bill does not affect Scottish licensing law, nor does it prevent a business from excluding breastfeeding on its premises where the lawful custom or practice is to exclude children generally. Where a child is lawfully permitted to be in a public place or licensed premises, that child may be fed bottled milk, and the child’s mother (or any other woman who has charge of the child) will be entitled to breastfeed him or her if she so chooses. Any person who deliberately prevents or stops (or attempts to prevent or stop) a person from bottlefeeding or breastfeeding a child in such circumstances will be guilty of an offence, liable on conviction to fine not exceeding level 4 on the standard scale (currently £2,500).
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Wee bit different, ain't it?
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In Scotland, you interfere, and the mother picks up her mobile phone, phones the police, the police come and explain to the person trying to stop the feed, that they are committing an unlawful act which if convicted, will result in a £2500 fine. Mother carries on feeding and is not thrown out of the cafe. Do note this law safeguards the right of the child.
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In England...? What? Well, if I read it right, and I'm not a lawyer... this is what the proposed Equalities Bill says...
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108 Jurisdiction
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(1) A county court or, in Scotland, the sheriff has jurisdiction to determine a claim relating to.
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(a) a contravention of Part 3 (services and public functions);
(b) a contravention of Part 4 (premises);
(c) a contravention of Part 6 (education);
(d) a contravention of Part 7 (associations);
(e) a contravention of section 102, 105 or 106 that relates to Part 3, 4, 6 or 7.
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So, what, the mother thrown out of the cafe, then sues for damages in a county court? This is exactly that has been said is already the case in England & Wales. And has been stated repeatedly, by the Gov, they are just making a bit clearer, and 'strengthening' the understanding.
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"This type of discrimination has in fact been unlawful for more than thirty years, and the mother - with a baby of any age - could challenge the owner under the Sex Discrimination Act.” Barbara Follett, July 2008.
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So where is the new protection? What is the new protection? Mentioning it under 'six months' Maternity provision? That's not new, that's clarifying another way to do things.
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What, in fact, is protection in the eyes of the UK Government, as far as England & Wales is concerned? The ability to claim in a civil court, under your own responsibility and cost, for damages after the event? Or to prevent the event happening in the first place?
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Incidentally, after six months isn't even in a civil court, if I read it correctly...it's a Sexual Discrimination tribunal! And we all know how easy, cheap and emotionally smooth those are, for women who've got 16 suitcases of files proving they've been discriminated against at work! Never mind can prove they were thrown out of a cafe for breastfeeding. What's the cafe owner going to do, sign a piece of paper stating that's why he threw her out? Need I repeat this another time?
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Oh, and don't miss out on the last few words of section 7.... treated less favourably than is reasonable. One wonders what a county court would deem to be reasonable in a case of breastfeeding in public? You don't think how much breast might have been exposed, may impact on that, do you? Heaven forfend it was an over the top bra motion, and no pashmina!
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I said I wasn't a lawyer, and I'd not wanted to post on this yet. That's because I'd asked my MP, Alistair Burt, to clarify all this stuff, by asking directly. Alistair and I don't see eye to eye on a lot of things, especially Yarl's Wood, but he is an exceptionally hard working MP for his constituents and he will follow through doggedly on requests for clarity. His office has responded and is on the case... but there simply hasn't been time to get decent answers out of the Government. So I'd wanted my fears about this proposed new legislation confirmed, so I could bring you answers, not questions.
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However.
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In light of all the publicity sweeping through breastfeeding protection circles, trumpeting this Bill as a glorious new step... I felt it was only right to bring my questions to you all, and ask you to do the same: get your MP to ask the questions about what this Bill actually means. It is really important we challenge what is going on in this Bill, and get a really good sense of what it actually means, before going off on a lovely relaxed break from campaigning as it's all sorted. I don't believe it's all sorted one bit - I think we are being fooled into putting our feet up and putting the kettle on, whilst we still need to be outside The House, demanding protection for our babies to have the right to feed free from interference.
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You can write your MP here, put in your postcode and it will give your your MP's name and you can then click to email them direct. I know some of you struggle to formulate letters, so you could use the following, personalised for you:
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Dear
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I'm writing to request you seek clarification from the Government on the details of how breastfeeding in public spaces is protected under the proposed Equalities Bill. Specifically, could you ask what would happen if a mother was asked to stop feeding her child, and leave a cafe? Would she have to leave, when asked, and then bring a claim after the event?
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I'd also appreciate you inquiring what protection a mother has if she is approached in the street, or on premises, from a passer-by and not the staff or owner of the premises? If a fellow passenger on the train, for instance, starts to demand she stop feeding and leave the carriage, what protection would the mother have under the Equalities Bill?
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As you know, if this took place in Scotland, the mother could have either staff, or passer by, charged for an offence liable to a £2500 fine. I'm greatly concerned that the proposals in the Equalities Bill are not equal to this and would ask that you seek clarification on my behalf.
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Yours...
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I'd so love to find out I'm wrong, and have egg all over my face...!
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Why is this important, really, challenging them on this? Isn't that fact that they've mentioned breastfeeding at all, a triumph?
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I'd argue not. I'd argue that they've been put under huge pressure on this, and they have had to sit up and take notice. But that they have no intention of actually making real changes. This smoke and mirrors Bill is about reducing the pressure. And it's working: so many people are going on about how great it is. Also, and this is really important, the chances of this Bill being passed are very slim. As soon as a General Election is called, this bill is dead.. and the Bill has serious, serious flaws in it that will require a great deal of work.
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My worry is that all this trumpeting will create the impression that the work is done - we are there, we have protection, and that's it's already happened. And even what's in this Bill, is unlikely ever to be passed. Although that doesn't appear to matter, as it's all in law already, right?
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And whilst we all put our feet up, make the tea, and chat about how wonderful it is... somewhere, a young Mum will find herself thrown out a shopping mall for breastfeeding her six week old baby. And she'll stand there and say "You can't throw me out, I'm protected." and the security guards will escort her off the premises regardless. Far fetched? Two weeks ago, Emily Pulling was breastfeeding her six week old baby in a shopping mall in London. She was approached by a security guard. As it happened, baby finished before the guard arrived. Emily asked why the guard was approaching her. The guard said "Oh it's all right now, you've stopped anyway..."
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We'll see you in Westminster on Monday July 20th.
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EDIT: 13th May, 2009
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I had cause to write to UNICEF UK, and complain that they were asking mothers to write their MP and asking them to support the Equalities Bill as it was introducing breastfeeding protection. I said to UNICEF UK, what I said above, that as far as I could see, there was no new protection, and if a mother was asked to leave a cafe, she would have to go. UNICEF UK replied that this was correct.
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So we do have confirmation that indeed, under this legislation, which is already in place anyway, if a mother is asked to leave premises, SHE MUST DO SO.
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My point to UNICEF is my point to all and any breastfeeding support agencies who make public statements about supporting Clause 16: you are setting back the date, significantly, on getting proper protection for babies and mothers in England & Wales. Every time any agency says up front it is supporting Clause 16, you are saying It Is Good Enough. And when we ask for more, we'll be told "Everyone was happy with this legislation." It will be used to close down any dialogue and to resist pressure for proper protection. It may be a generation before we get back on track.
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It is perfectly feasible to state you are happy that the Government is taking breastfeeding protection seriously, and you support Clause 17 wholeheartedly, but that Clause 16 is not good enough. It is perfectly feasible to respond to overtures from the UK Government about improvements, without rolling over dead and letting them tickle your tummy.
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Please spread the word, that if a mother supports Clause 16 she is supporting a law that means if she is asked to leave a cafe for breastfeeding, she has to do so. No one should sign up for this, without knowing that is what they are doing. In my opinion, none of the breastfeeding protection agencies should be mentioning this Bill, without making this fact expressly clear, and stating that this is Just Not Good Enough.
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Dear Morgan,
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Thank you for your email about the Equality Bill.
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UNICEF UK welcomes the breastfeeding provisions in the Equality Bill as we see them as an important step towards realising objective 5 of the Breastfeeding Manifesto to develop policy and practice to support breastfeeding in public. Legislation is only one part of the framework required to encourage a supportive environment for breastfeeding mothers however we believe these clauses send out a message that breastfeeding is an important and natural practice.
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The Equality Bill is anti-discrimination legislation whereas the law that was introduced by Elaine Smith in 2005 in Scotland introduced a criminal offence which made it illegal to prevent a child being fed milk (artificial or breast) in a public place..
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UNICEF UK welcomes legislative measures that lead to a more supportive environment for breastfeeding. For this reason, in 2005 we supported David Kidney MP’s attempt to introduce legislation in England and Wales that was similar to Elaine Smith’s Breastfeeding etc. (Scotland) Bill. His Bill did not become law however we continue to support attempts to promote and protect breastfeeding through legislation and other means.
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It is true that if this Bill becomes law as it is, a café owner could ask a woman to leave the café, but this bill would make that request unlawful. This is not the same as what parents in Scotland have, which is an absolute right to feed a child under 2 years milk (breast or formula) in a public place. By welcoming this provision in the Equality Bill we are not suggesting that there is not more work to be done. Far from it, we are actively working to create a better understanding of the importance of breastfeeding in Parliament and Government. To coincide with National Breastfeeding Awareness Week we have published
The UNICEF UK Baby Friendly Initiative: Improving the health of the UK through breastfeeding which outlines the barriers to breastfeeding as well as the work of the Baby Friendly Initiative to overcome these. It you would like a hard copy of this briefing paper please send me your address
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Regards,
Senay
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Senay Camgoz
Senior UK Policy and Parliamentary Officer

2 comments:

Sundancer said...

Thank you for this clarification Morgan, I do find these bills really hard to read and understand, although I gathered that not much had changed from the last one.
I attempted to email my MP a number of times from the link you provided but it wouldn't send. Fortunately, it's not hard to google him and the email is on his webpage.
Fingers crossed I get a reply now!

the mol said...

Not to be a pain but the word is "inquiring" not "enquiring" that you wrote above.

This is a really important issue--thank you for addressing it.