Thursday, 23 July 2009

Hypothetical Breastfeeding Protection


Morgan to Unicef UK: If a mother is asked to leave a cafe, must she go?

Unicef UK: It is true that is this Bill becomes law as it is, a cafe owner could ask a woman to leave the cafe, but the bill would make that request unlawful.

Morgan To Vera Baird: If a mother is asked to leave a cafe, must she go?

Vera Baird: NO

Morgan to Equalities Office: If a mother is asked to leave a cafe, must she go?

Equalities Office: It is not for us to provide a yes or a no answer to a hypothetical questions as you have requested.

I'm so tempted to start this post with .. imagine a world where..? ;-)

So here we go, back to the Equalities Bill slog. Whereby, dear reader, we've had the Forces of Enquiring Minds, battling with the Forces of Brick Wall (Government division) for Quite Some Time.

Last week, we thought we have a crack on one of the bricks, when Vera Baird QC, MP, Solicitor General, finally replied to the question on all our lips with a very firm:

"NO"

But when asked to quantify this statement, refused to carry on the email discussion, and directed me to ask it via the Equalities Office. Which I did. Letter here.

The Equalities Office replied, yesterday, the day after Parliament went into Summer Recess. Coincidence, I'm sure.

This is their full reply:

Dear Ms Gallagher,
I am responding to your e-mail of 12 July to Vera Baird QC MP and your subsequent e-mail of 15 July to GEO enquiries.  I apologise that you were sent a standard reply to your previous requests for clarification on what protection breastfeeding mothers will have under the Equality Bill which did not answer all your questions.
Turning first to your e-mail of 12 July, the Equality Bill, which applies to England, Wales and Scotland, makes absolutely clear that breastfeeding mothers are protected from discrimination in relation to provision of services to the public, whatever their baby's age.  So a woman who is breastfeeding her baby in a restaurant or on a bus cannot lawfully be asked to leave, or get off, for that reason.
I believe that the clause in the Bill which caused you concern was clause 16(7) which introduced a "reasonableness" test which was intended to be used to judge whether discrimination had taken place.  We listened to representations by interested stakeholders and recognise that this clause would have had the unintended consequence of potentially allowing discrimination against pregnant women or new mothers if this could be shown to be reasonable.  Therefore on 9 June, we tabled amendments to clauses 16 and 17 of the Bill which prohibit pregnancy and maternity discrimination - one of which was to remove clause 16(7).  These amendments were briefly debated on 16 June and agreed, and therefore now stand part of the Bill.  We believe that these amendments will improve legal clarity without any risk of a loss of protection and will represent a return to the level of protection given under the Sex Discrimination Act 1975 (as amended).
You specifically asked for an answer to the question "if she is asked to leave the premises by a person in authority must she go?"  It is not for us to provide a yes or no answer to a hypothetical question as you have requested.  However, if this was in a café for instance, the person asking a woman to leave because she is breastfeeding would be acting unlawfully.  It would therefore be open to the woman to challenge the café owner.  However, if for any reason she did not want or felt unable to do this, she could bring a claim of discrimination against the café owner.
With regard to you 15 July e-mail, at your request, we have noted that you do not support the Bill.  With regard to the Bill making it unlawful to turn a woman away from a restaurant for instance because she is breastfeeding, this is what is covered by clause 16 (now clause 17 in the Bill as republished on 7 July.  This can be accessed electronically from the following link: http://www.publications.parliament.uk/pa/cm200809/cmbills/131/09131.i-vii.html). 
As and when the Bill is enacted, before it comes into law, guidance will be produced to explain what the Bill means and will cover matters such as these.  You should be aware however that the section 3B of the Sex Discrimination Act which makes maternity discrimination unlawful already protects a breastfeeding mother in the same way as clause 17 of the Bill does.  It is this that we are making clearer in the Bill.
I hope this provides the clarification that you seek.
Yours sincerely,
 Kate Stasik Government Equalities Office
Let me take you through that:
July 12th,  I ask this question, to Vera Baird:
"Could you please confirm that under the provision of Clause 16 in the  proposed Equalities Bill, that if a mother who is breastfeeding in  England & Wales is asked to leave premises providing her with goods or  services, she must leave? I do not wish to hear an answer that states  you think that as it is (note IS, not will be) an offence to do so, no  person in authority on those premises would ask a mother to do so. I’m  not interested in that response. I’m interested in the answer to the  question: if she is asked to leave premises by a person in authority…  must she go? The answer is either a ‘yes’ or a ‘no’: if that helps you  narrow down and formulate your response."
July 15th, Vera replies:
"NO"
July 15th I reply:
"Thank you.  At least we're getting somewhere. 
I'm sorry to say, I couldn't see your acknowledgement that I do not support the Bill.

Could you now please explain where in the Bill it explains the recourse available to the mother refusing to leave the premises when asked to do so? This needs to be passed on to mothers who have been asked to leave, so they know what to say if the person in authority states the police will be called if they refuse to leave the premises.

As other reputable sources involved in the Bill being formulated, such as UNICEF UK, has stated that yes, under the law the mother would have to leave, you can understand why it is so pressing to get the details correct from the highest source."

July 15th Vera replies with 'take it to the Equalities Office'. I do.

July 22nd Equalities Office replies:

"You specifically asked for an answer to the question "if she is asked to leave the premises by a person in authority must she go?" It is not for us to provide a yes or no answer to a hypothetical question as you have requested. However, if this was in a café for instance, the person asking a woman to leave because she is breastfeeding would be acting unlawfully. It would therefore be open to the woman to challenge the café owner. However, if for any reason she did not want or felt unable to do this, she could bring a claim of discrimination against the café owner."

Do note the repeating of the Government line - it's unlawful for them to ask a mother to leave. Do note I asked them NOT TO SAY THIS TO ME, as I knew that answer and was not interested in it.

Do note the refusal to answer the question asked. Again.

Complete refusal to actually answer the damn question.

Anyone would think I was asking the most pertinent question, the way they duck and dive and refuse to answer it.

Apart from Vera, of course. Who has replied in a way that cannot be quantified, verified or understood. Well, she is a lawyer.... isn't that so unfair to lawyers? It feels mean to lambast all lawyers, on behalf of Vera. I 'll try again.

Well, she is an MP... isn't that so unfair to MPs? Harrumph. We have really good MPs working for their constituents.... let's have another crack it it.

Well, she is an Government Minister... isn't that so unfair to Government Ministers?

Probably Not. But still feels mean.

Okay, try this... well, she is Solicitor General.

Yeah, that works.

*sigh*

Also very cute how they filled the answer up with lots of things I'd not asked. I especially liked the "I believe the clause in the Bill which caused you most concern was 16(7)..." That's an amazing amount of telepathy at work there! Exceptional. You don't think they just shoe-horned it all in, to make to look at how reasonable they are in listening to concerns? Notwithstanding it's not a concern I'd raised with them at all? Yes, I think so to.

HOWEVER.

However...

Don't miss out on what's really important in this reply. What's actually going to make it easier for MPs to now put real pressure on about getting answers. Don't miss the bits THAT ARE REAL GIVE AWAYS:

"You should be aware however that the section 3B of the Sex Discrimination Act which makes maternity discrimination unlawful already protects a breastfeeding mother in the same way as clause 17 of the Bill does. It is this that we are making clearer in the Bill."

"Therefore on 9 June, we tabled amendments to clauses 16 and 17 of the Bill which prohibit pregnancy and maternity discrimination - one of which was to remove clause 16(7). These amendments were briefly debated on 16 June and agreed, and therefore now stand part of the Bill. We believe that these amendments will improve legal clarity without any risk of a loss of protection and will represent a return to the level of protection given under the Sex Discrimination Act 1975 (as amended)."

There is no new protection. There is no new protection. Repeat after me: there is no new protection. When the Bill came out of committee, Clause 16 became Clause 17. That's why she's talking about Clause 17 being what is already in the Sex Discrimination Bill.

Nothing in the Bill is 'new'.

AND
".... the Equality Bill, which applies to England, Wales and Scotland, makes absolutely clear that breastfeeding mothers are protected from discrimination in relation to provision of services to the public, whatever their baby's age."
So... once again, the whole six-month fallacy nailed.  Despite the briefings to MPs, despite the discussions in committee.  They are continuing to answer questions without dwelling on the schism of how mothers claim after the event, depending on the age of their babies.  But it's so important they've put these two points - no new protection, just a clarifiying of existing protection, and no age limit - into this response.
Although, of course, they've kept to 'premises'.  Still no protection in public spaces Mums, just somewhere where there are premises and good and services.  Another little sleight of hand - good at it, ain't they?
I'm going to get this info back to the MPs who are working with their constituents on this - Alastair Burt, Simon Hughes, Cheryl Gillan, Annette Brooks and Ed Davy.  I'll also see if the tabled questions by Cheryl have been answered.
Watch This Space.



4 comments:

Rob A said...

Have you had any contact with Lynne Featherstone MP who's on the committee looking at the bill?

http://www.lynnefeatherstone.org/blog.htm

Morgan said...

Yes Rob, we have. Ed Davy phoned her from the Westminster Breastfeeding Picnic on Monday, where they chatted about it to us, with Ed on the phone. Worryingly, Lynne appeared to think there was a six month issue. I say 'appeared' as I didn't speak to her direct,and there was a lot of other talking with Simon Hughes that day too, and I can't swear which conversations was which (end of picnic, I was shattered). As Lynne was not a direct contact with any of us, yet, I didn't put her name down.

However, Ed Davy asked us to write up a full briefing, and to send it to Ed/Lynne, and Simon wanted cc'd too. I'm in the process of doing that. Thankfully, now we are in Recess, there is time to prepare very thoroughly, and check the committee amendments as well as compile a timeline for all the MPs now pursuing this.

It's much more effective, if we can make a constituent link to each MP fighting this now - and that's how all the other MPs came on board.

Those letters to your own MP, are vital.

Incidentally, the Bill will not now be represented before the next's Queen's Speech, so it really does look like it won't make it through before the next election. Which is what I think will happen, actually. But, hopefully, all this work will reap rewards later, when we do move to actual, real protection, and not this sham.

Of course, we could get them to put real protection into the Bill, I suppose! Hadn't really ever thought that was feasible, but you never know...

Rob A said...

Thanks for the reply, Morgan.

My MP is Theresa May, Shadow Minister for Women, and I wish I could say that was a good thing...

Anonymous said...

I raised the issue of breast feeding at committee stage - and Vera Baird did not agree. You can read it in Hansard. My argument was that discrimination against a woman breastfeeding shouldn't have a time limit of 6 months. It's discrimination at whatever age. I guess if it gets to 'bitty' a la Little Britain - it might be a step too far. Anyway - Government did not cave in on this - sadly.