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This is a corrected copy and is being issued free of charge to all known recipients of the original publication. These notes refer to the Equality Bill as introduced in the House of Commons on 2nd March 2005 [Bill 72] EQUALITY BILL
EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Equality Bill as introduced in the House of Commons on 2nd March 2005. They have been prepared by the Department of Trade and Industry and (in relation to clauses 7 and 9) the Department for Constitutional Affairs and (in relation to clauses 45 to 80) by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. 3. The Bill relates to matters within the responsibilities of the Secretary of State for Trade and Industry, the Secretary of State for Constitutional Affairs, the Secretary of State for Work and Pensions and the Home Secretary. The Secretary of State for Education and Skills will have a key interest in education matters within the Bill. References to the Secretary of State in the Bill mean any Secretary of State. In practice, some of the functions conferred upon the Secretary of State will be exercised by the Secretary of State for Trade and Industry, the Secretary of State for Constitutional Affairs, the Home Secretary and the Secretary of State for Work and Pensions jointly and others by only one of them. This will reflect their respective ministerial portfolios. In one case an order making power is conferred specifically on the Lord Chancellor - as described in more detail in the commentary on clause 30. SUMMARY 4. The Bill's main provisions:
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5. The CEHR will take on the work of the existing equality commissions (the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE), and the Disability Rights Commission (DRC)) and will additionally assume responsibility for promoting equality and combating unlawful discrimination in three new strands, namely sexual orientation, religion or belief, and age. The CEHR will also have responsibility for the promotion of human rights BACKGROUND 6. The Sex Discrimination Act 1975 (SDA), Race Relations Act 1976 (RRA) and the Disability Rights Commission Act 1999 (DRCA) created the EOC, CRE, and DRC respectively. The Commissions are conferred by their individual founding legislation with responsibility for combating unlawful discrimination and promoting equality of opportunity as regards gender, race or disability. The EOC has responsibilities for the SDA and Equal Pay Act 1970, the CRE has responsibility for the RRA and the DRC enforces the Disability Discrimination Act 1995 (DDA). 7. The Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Religion or Belief) Regulations 2003 made unlawful discrimination on the grounds of sexual orientation and religion or belief in employment and vocational training. These Regulations implement the UK's obligations under the EC Employment Directive (Directive 2000/78/EC). Legislation is also being prepared to prohibit age discrimination in these areas, as required by the Employment Directive. There is currently no statutory institution with responsibility for promoting equality or combating unlawful discrimination in these new equality strands. Similarly, although all public bodies must adhere to the provisions of the Human Rights Act 1998, there is currently no statutory body charged with promoting human rights in Great Britain. 8. In October 2002, the Government issued a consultation paper ("Equality and Diversity: Making it Happen - Consultation on future structures for equality institutions") comprising a review of existing institutional support for equality legislation and options for the future, in particular the feasibility of creating a single equality commission for Great Britain. A majority of respondents to the consultation supported the establishment of a single equality body. 9. In October 2003, the Government announced its intention to bring together the work of the existing Commissions in a new body that would also take responsibility for new laws on age, religion or belief and sexual orientation, and for the first time provide institutional support for human rights. 10. The White Paper (Cm 6185 "Fairness for All: A New Commission for Equality and Human Rights") was published on 12 May 2004. The White Paper set out the Government's detailed proposals for the CEHR, including its role, duties and powers, and outlined the way in which the CEHR will deliver services to its key stakeholders. Views were invited on the proposals by 6 August 2004, and the Government's response to that consultation was published on 18 November 2004. THE BILL 11. The Bill is in four parts and has four Schedules. 12. Part 1 including Schedules 1, 2 and 3 establishes the CEHR and sets out its duties, general powers, enforcement powers and the interpretation of that Part of the Bill. Dissolution of the existing equality commissions is also covered in this part of the Bill. 13. Part 2 sets out provisions prohibiting discrimination on grounds of religion or belief in the provision of goods, facilities and services, education, premises and the exercise of public functions. 14. Part 3 sets out provisions prohibiting sex discrimination in the exercise of public functions and creates a public sector duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity between women and men. 15. Part 4 including Schedule 4 contains general supplementary material including amendments and repeals, Crown application, money, commencement and extent. COMMENTARY ON CLAUSES Part 1: The Commission for Equality and Human Rights Clause 1: Establishment 16. Clause 1 establishes the CEHR. Clause 2: Constitution &c 17. Clause 2 introduces Schedule 1 which sets out provisions relating to the constitution of the CEHR; its members (the commissioners); their appointment criteria; and their tenure of office; the tenure of office of the chairman and the deputy chairman; regulation of its proceedings; appointment of its staff; appointment of its investigating commissioners; its powers of delegation and the committees to which certain functions must be delegated; preparation of its annual report; remuneration of commissioners and staff; its financial arrangements; and its status. Clause 3: Fundamental duty 18. Clause 3 sets out the outcomes for society that the CEHR is required to work towards. It explains the rationale for the CEHR, combining work in equality, human rights and good relations between communities. The CEHR is required to exercise its functions in Part 1 in order to work towards the outcomes set out in this clause. Clause 4: Strategic plan 19. Clause 4 places the CEHR under a duty to publish a strategic plan setting out the activities or types of activity it plans to carry out, the timetable for these activities, and the priorities for these activities (or the principles on how these priorities should be determined). 20. Subsection (2) requires the CEHR to review its strategic plan at least once every three years from publication, although it does not have to revise the plan after each review if it does not think it appropriate to do so. The CEHR must publish the original plan and each revision of it. Clause 5: Strategic plan: consultation 21. Clause 5 places the CEHR under a duty to consult on the preparation and review of its strategic plan. The CEHR is required to consult with those who have knowledge or experience relevant to the CEHR's functions and others the CEHR considers appropriate. The CEHR is also required to issue a general invitation to make representations, to ensure it is able to consult with as large a group of people as possible. 22. The CEHR will be required to take account of any representations it receives in the course of its consultation. Clause 6: Disclosure 23. Clause 6 creates a summary criminal offence of unauthorised disclosure of information acquired by the CEHR, from third parties, in the course of the exercise of its powers to conduct inquiries, investigations and to make agreements. Information obtained by the CEHR in the course of the exercise of these powers remain confidential, other than where the disclosure falls into one of the six categories listed in subsection (2). Subsection (3) provides that the penalty for a summary conviction shall be a fine up to the statutory maximum i.e. £5,000. Clause 7: Scotland: human rights 24 Clause 7 deals with the interface between the CEHR's human rights role and devolution. Human rights as a subject is neither devolved nor reserved. Each issue is treated as devolved or reserved on the basis of the devolved or reserved status of the service giving rise to that issue. It is intended to ensure that matters which are identified as devolved matters should not be dealt with by the CEHR other than with the consent of an appropriate body established by Act of the Scottish Parliament. 25. Subsection (1) sets out the general prohibition on acting in human rights matters which fall within the competence of the Scottish Parliament. 26. Subsection (2) sets out the provisions of the Act to which the prohibition applies. 27. Subsection (4) allows the CEHR to act in the prohibited class of matters if it has the consent of the body mentioned in paragraph 24 above. Clause 8: Equality and diversity 28. Clauses 8 to 13 set out the duties of the CEHR. Later clauses in Part 1 set out the general powers the CEHR has to meet its obligations under these duties. 29. Clause 8 sets out the CEHR's duties in relation to equality and diversity. The provisions require the CEHR to promote understanding of, and encourage good practice in relation to, equality and diversity (whether or not this relates to compliance with the equality enactments (as listed in clause 35)), promote equality of opportunity, promote awareness and understanding of rights under the equality enactments and to work towards the elimination of unlawful discrimination and harassment, including through using its enforcement powers. Clause 9: Human Rights 30. Clause 9 sets out the CEHR's duties in relation to human rights. The provisions require the CEHR to promote understanding of the importance of human rights, encourage good practice in relation to human rights, and promote awareness, understanding and protection of human rights. In addition, the CEHR will be required to encourage public authorities to comply with section 6 of the Human Rights Act 1998 (which prohibits them from acting in a way which is incompatible with the Convention rights as defined in section 1 of the 1998 Act). 31. The latter duty applies only in relation to public authorities ("public authority" is defined in section 6 of the 1998 Act). However in relation to the more general duties under this clause the CEHR will not be limited to dealing with public authorities. It will, for example, also be able to provide encouragement to the voluntary and commercial sectors to adopt appropriate human rights standards as the basis of the relationship with their clients and customers in the provision of their services. 32. Subsection (2) makes clear that the CEHR may take action under this clause in respect of human rights other than the "Convention rights" set out in Schedule 1 to the Human Rights Act 1998. However, subsection (4) requires the CEHR to give priority to the Convention rights. 33. Subsection (3) requires the CEHR to take account of relevant human rights when fulfilling its duties under clauses 8, 10 and 11. Clause 10: Disability 34. Clause 10 sets out the CEHR's duties in relation to the treatment of disabled persons. This is in addition to the duties laid down in of clause 8. 35. Subsection (1)(a) requires the CEHR to promote an understanding of the importance of the fair treatment of disabled people. This duty will address situations outside the scope of the DDA where behaviour towards disabled people treats them less favourably than non-disabled people, often sub-consciously and resulting from a lack of awareness and understanding of disability. It could cover, for example, the situation of a child with learning difficulties being picked on by other children in a local park, or a British Sign Language user being asked to leave a pub because people consider his gesturing as he signs to be aggressive. 36. Subsection (1)(b) requires the CEHR to encourage good practice in the treatment of disabled people and carries forward one of the existing duties of the DRC under the DRCA. Subsections (1)(c) and (1)(d) require the CEHR to work towards eliminating prejudice against disabled persons and eliminating their involuntary isolation. These duties reflect the duties imposed on the CEHR in respect of the other equality strands by clause 11 and that are relevant in the context of disability. 37. Subsection (2) defines "disabled person" for the purposes of Part 1 of this Bill by reference to the definition of disability in Part 1 of the DDA. The definition includes people who have had a disability in the past . 38. Subsection (3) confirms that the disability duties under clause 10 are in addition to the Equality and Diversity duties set out in clause 8 which apply to disability in the same way as to the other equality strands. Clause 11: Communities 39. Clause 11 sets out the CEHR's duties in relation to promoting good relations between and within different communities, and between different communities and wider society. It also requires the CEHR to work towards eliminating prejudice against communities and preventing the involuntary isolation of communities, for example in challenging racism in the media, or encouraging members of a particular community to become involved in civic activities. 40. Subsections (2) and (3) define communities as a group or sub-group of people who share one of the attributes listed in subsection (2), whether or not they regard themselves as part of a community. 41. Subsection (4) ensures that, in carrying out its duties in this clause, the CEHR should give particular regard to the need to exercise these powers in relation to communities defined by reference to race, religion or belief. 42. Subsection (5) enables the Secretary of State to add to or vary the list of personal attributes in subsection (2) by way of an order which would need to be approved by a resolution of each House of Parliament. Clause 12: Monitoring the law 43. Clause 12 sets out the obligations and powers of the CEHR to keep the equality and human rights enactments under review and provide advice and recommendations on the law and proposed changes to the law. 44. Subsection (1) requires the CEHR to monitor the effectiveness of the equality and human rights enactments. The equality and human rights enactments are listed in clause 35 and, for the purposes of this clause, include the whole of the Equality Act. Subsections 2(a) and (b) enable but do not require the CEHR to advise the Government about the effectiveness of the equality and human rights enactments and to recommend changes. Subsections 2(c) and (d) enable the CEHR to give advice to the Government or the devolved administrations in Scotland or Wales about the effect of legislation (not limited to the equality and human rights enactments) or the likely effect of any proposed changes to the law. The advice of the CEHR has to be in relation to its duties in clauses 8 - 11 i.e. equality and diversity, human rights, disability and communities. Subsection (3) provides that the CEHR must provide advice about the effect of an enactment or likely effect of a proposed change to legislation when required to do so by the Secretary of State. Clause 13: Monitoring progress 45. Clause 13 places the CEHR under a duty to publish reports on what progress has been made towards the achievement of desirable outcomes which can be used to establish whether the society described in clause 3 is being created. To meet its obligations under this duty, the CEHR will need to evaluate available evidence in order to identify desired outcomes for society and the indicators by reference to which progress can be measured. The CEHR will be required to consult widely on which of these should be priorities for the CEHR to monitor. 46. Once the CEHR has determined what outcomes and indicators are priorities, it will use the indicators to monitor progress towards the outcomes over a period of time. The CEHR is required to publish a report within three years of this section coming into force, and every three years thereafter. The Secretary of State must lay the progress report before Parliament. Clause 14: Information, advice &c 47. Clause 14 sets out the general powers available to the CEHR, and the general activities it can undertake, to carry out any or all of its duties. These activities are publishing or disseminating ideas and information, giving advice and guidance, undertaking research and providing education or training. 48. Subsections (1)(e) and (f) permits the CEHR to work in partnership with others, or to arrange for others to carry out any of the listed activities. 49. Subsection (2) confirms that advice given under this section does not include the preparation of documents to be used for the purpose of legal proceedings. The CEHR has separate powers to provide such advice in respect of particular types of legal proceedings as laid down in Clause 30. Clause 15: Codes of Practice 50. Clause 15 enables the CEHR to issue a Code of Practice, and to be required to so do when asked by the Secretary of State, in respect of specified areas of discrimination legislation, to assist in compliance with the legislation and to promote equality of opportunity. 51. Subsection (1) lists the areas in the equality enactments (as defined in clause 35) in relation to which the CEHR is to be able to issue Codes of Practice. 52. Subsection (4) requires the CEHR to publish for consultation proposals for any Code of Practice. 53. Subsection (5) prevents the CEHR from issuing a Code of Practice unless it has been approved in draft by the Secretary of State and then laid before Parliament. Either House of Parliament may pass a resolution disapproving the draft Code within 40 days of it being laid. If no such resolution is passed, subsection (6) provides that the Code of Practice will come into force on a day specified by order by the Secretary of State. 54. Subsection (7) requires the Secretary of State to consult Scottish Ministers and the National Assembly for Wales prior to approving or commencing a Code of Practice which relates to the duties on the public sector regarding the general and specific duties for race, gender or disability under the RRA, SDA and DDA, respectively. Clause 16: Codes of practice - supplemental 55. Subsection (1) of this clause makes provision for the Codes of Practice issued under clause 15 to be revised and sets out the procedure for so doing. Subsection (3) provides for any Code to be revoked by an order made by the Secretary of State at the request of the CEHR. An order to revoke a Code will not be subject to any Parliamentary procedure. 56. Subsection (4) describes the legal effect of a Code of Practice. It provides that a failure to comply with a provision of a Code of Practice does not itself give rise to criminal or civil proceedings, but that the Code is admissible in such proceedings and must be taken into account by a court or tribunal if the court or tribunal considers the Code to be relevant. 57. Subsection (6) provides for an order making power to allow the Secretary of State to add to, remove from or vary the list of provisions in clause 15(1) in respect of which the CEHR may issue a Code of Practice. In accordance with clause 41(4), any such order will be subject to the affirmative resolution procedure. Clause 17: Inquiries 58. Clause 17 gives the CEHR a power to conduct inquiries - and requires it to do so if asked by the Secretary of State - into matters relating to its duties in respect of equality and diversity, human rights, disability and communities. These could be thematic (for example into the causes of unequal outcomes), sectoral (looking at inequality in, for example, the uptake of health screening services or at the employment of disabled people in particular sectors e.g. the retail sector) or relate to one or more named parties. 59. Subsection (2) provides that if the CEHR begins to suspect that a person who is the subject of an inquiry may have committed an unlawful act (i.e. a breach of the equality enactments, as set out in clauses 35 & 36), it should not continue to consider that act as part of the inquiry. The CEHR can, however, use the information acquired in the course of an inquiry as the basis from which to launch an investigation. The CEHR is under a duty to ensure that so far as possible, those aspects of an inquiry which concern the person being investigated or which require his involvement are not pursued while the investigation is in progress. 60. Subsection (3) provides that the report of an inquiry may not conclude, expressly or by necessary implication, that a specified or identifiable person has committed an unlawful act. Nor may the report refer to the activities of a person in terms that will harm the person unless it is necessary in order that the report adequately reflect the results of the inquiry. 61. Subsection (4) provides that restrictions on the CEHR considering unlawful acts under the equality enactments should not impact on the CEHR's consideration and reporting of human rights matters in the course of an inquiry. 62. Subsection (5) provides that the CEHR, in circumstances where the findings are in the opinion of the CEHR of an adverse nature, must allow a specified or identifiable person at least 28 days in which to make written representations on the draft of a report which records findings which relate to that person, and requires the CEHR to consider any such representations. 63. Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, adjournments, reports and recommendations and effects of reports in relation to inquiries, investigations and assessments. Commentary on Schedule 2 can be found in paragraphs 314 to 320 of this Explanatory Note. Clause 18: Grants 64. Clause 18 provides the CEHR with a power to make grants to others, in pursuance of any of its duties under clauses 8-11. This is a power currently available only to the Commission for Racial Equality under section 44 of the RRA. 65. Subsection (2) allows the CEHR to attach conditions, including as to repayment, to the financial assistance that it provides. 66. Subsection (3) provides that, where the CEHR provides financial assistance in the exercise of its powers to co-operate with or assist others under Part 1 of the Bill, it may only do so only in accordance with the provisions of clause 18. Clause 20: Disability 67. Clause 20 sets out powers which the CEHR may exercise (in addition to those in clause 14) in order to fulfil the disability duties in clause 10 of the Bill. These powers reflect the powers given to the CEHR in relation to the other equality strands in clause 21. 68. The provisions in clause 20 enable the CEHR to monitor crimes, and undertake activities to reduce crimes, affecting disabled people. The CEHR can also arrange social, recreational, sporting, civic, educational or other activities designed to involve disabled people. 69. The CEHR can undertake these activities itself, or can arrange to assist or co-operate with others in making such arrangements. For example, the CEHR might work with housing associations on initiatives to prevent anti-social behaviour towards tenants with learning disabilities by their co-tenants, or undertake capacity building among disabled people to increase the incidence of their participation as school governors or local councillors. |
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