Clause 21: Communities

70.     Clause 21 provides the CEHR with powers additional to the general powers set out in clause 14, to fulfil its duties in respect of the communities set out in clause 11.

71.     The provisions of clause 21 enable the CEHR to monitor crimes affecting certain communities and undertake activities to reduce crime within or affecting those communities. The CEHR can also arrange social, recreational, sporting, civic, educational or other activities designed to involve members of communities.

72.     The CEHR can undertake these activities itself, or can arrange to assist or cooperate with others in making such arrangements.

     Clause 22: Investigations

73.     Clause 22 gives the CEHR a power to conduct investigations into persons (both natural and legal) - and requires it to do so if asked by the Secretary of State. Such an investigation may be into the commission of an unlawful act under the equality enactments, compliance with a requirement of an unlawful act notice issued under clause 23 or compliance with the terms of an agreement entered into under clause 25.

74.     Under subsection (3), the Commission may only carry out an investigation under subsection (1) if it suspects that the person concerned may have committed an unlawful act. The same requirement is placed on the Secretary of State by virtue of subsection (4) before she can direct the Commission to investigate such a matter.

75.     Subsection (5) provides that a belief of unlawful discrimination or harassment, sufficient to satisfy the requirement in subsection (3), may have been acquired by the CEHR in the course of an inquiry, but need not be. The CEHR may carry out an investigation without having first carried out an inquiry.

76.     Subsection (6) sets out the requirements which must be met before the CEHR can settle a report which records a finding that the person concerned has: committed an unlawful act; failed to comply with a requirement imposed by an unlawful act notice under clause 23 or failed to comply with an undertaking given under clause 25. The CEHR must send the person concerned a draft of the report and allow him at least 28 days in which to make written representations and consider any representations made.

77.     Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, adjournments, reports and recommendations and effects of recommendations in respect of inquiries, investigation and assessments. Commentary on Schedule 2 can be found in paragraphs 314 to 320 of this Explanatory Note.

     Clause 23 : Unlawful act notice

78.     Clause 23 makes provision for the CEHR to issue an unlawful act notice after an investigation confirming an unlawful act had taken place.

79.     Subsection (1) permits the CEHR to issue an unlawful act notice in circumstances where it has conducted an investigation and is satisfied that the party investigated has committed an unlawful act, as defined in clause 36. Under subsection (2) an unlawful act notice must set out the unlawful act and the legislative provision by virtue of which the act is unlawful. Subsection (3) requires the CEHR to include in the notice details of the appeal procedure against the notice, the scope for a subsequent investigation into the subject's compliance with the notice and the scope for the CEHR to apply to a court for an injunction under clause 26 if it thinks the unlawful act is continuing. Under subsection (4) the CEHR may include within the notice a provision requiring the recipient prepare an action plan (as provided for in clause 24) setting out how the unlawful act will cease or not be repeated. It allows the CEHR to recommend action that the person served the notice should take. Subsection (5) sets out the basis on which a person may appeal against an unlawful act notice and subsection (6) sets out the options available to a court or tribunal to affirm, annul or vary a notice or requirement under it, including the power to make an order for costs.

     Clause 24: Action Plans

80.     Clause 24 sets out the arrangements for an action plan that clause 23 enables the CEHR to require of a person on whom it has served an unlawful act notice.

81.     Subsection (2) requires that the unlawful act notice must specify a deadline for the first draft action plan.

82.     Subsection (3) and (4) requires the CEHR to either approve the first or any subsequent draft plan or give notice to the person that it is not adequate, specify a time for a revised draft and allows it to make recommendations as to the content of the revised draft.

83     Subsection (5) provides that, unless the CEHR gives the person notice that the draft plan is inadequate or applies to a court for an order (under subsection (6) below) to provide a revised draft, the action plan shall come into force within six weeks.

84.     Subsection (6) enables the CEHR to apply to a county court (and the Scottish equivalent) for an order requiring a person to submit a draft or revised action plan by a deadline specified by the court. The court may also make a direction as to the plan's content. Subsection 6(c) enables the CEHR to apply to a court for an order within five years of an action plan coming into force to require the person to comply with the action plan or to take specific action for a similar purpose. Subsection (9) provides that a person not complying with a court order commits a criminal offence.

85.     Subsection (7) allows for an action plan to be varied by agreement.

86.     Subsection (8) applies paragraphs 9 to 13 of Schedule 2 to consideration by the CEHR of the adequacy of a draft action plan.

Clause 25: Agreements

87.     Clause 25 makes provision for the CEHR to enter into an agreement with a person whom it has reason to believe has committed an unlawful act, as defined in clause 36. Agreements are enforceable though the courts. The CEHR is able to enter into an agreement where the other party undertakes not to commit a specified unlawful act, to take or refrain from taking specified action. In return, the CEHR undertakes not to proceed under clause 22 or 23 with an investigation or the issue of an unlawful act notice in respect of the act specified in the agreement.

88. Under subsection (4) an agreement may contain supplementary matters, such as action that may be taken in the event of a breakdown of the agreement or the circumstances in which either party may terminate the agreement. It also allows the parties to consensually vary or terminate the agreement.

89.     Subsection (5) provides that the CEHR can enter into an agreement with a public authority in respect of a breach of any of the public sector duties set out in clause 36(2) in lieu of issuing a public sector duty compliance notice, as provided for in clause 34.

     Clause 26: Applications to court

90.     Clause 26 gives the CEHR the power to apply for an injunction (and an interdict in Scotland) against a person whom it believes that, unless restrained, is likely to commit an unlawful act. This will apply to a person against whom, within the previous 5 years, an unlawful act notice had been served or whom a court or tribunal had found had committed an unlawful act. It also provides for the CEHR to apply to a court when the other party to an agreement provided for in clause 25 has failed to comply, or the CEHR thinks is unlikely to comply with an undertaking under the agreement. The court can order the other party to comply with his undertaking and take any such other action as the court may specify.

     Clause 27: Application to restrain unlawful advertising, pressure, etc

91.     Clause 27 sets out the CEHR's powers to bring legal proceedings (in its own name) in respect of the relevant provisions in the SDA, RRA, DDA and this Bill that prohibits unlawful advertising, instructions and pressure to discriminate in respect of race, sex, disability and religion or belief.

92.     Subsection (2) provides that the CEHR alone is entitled to bring proceedings in respect of these provisions of the equality legislation set out in subsection (1).

93.     Under subsection (3) the CEHR can apply to an employment tribunal or county court for a finding that an act of unlawful advertising, pressure or instructions to discriminate has taken place.

94.      Subsection (4) provides for a court or tribunal to which a complaint has been made by the Commission to determine whether the allegation is correct.

95.     Subsection (5) gives the CEHR the power to apply to a county court for an injunction and under subsection (6) to a Sheriff in Scotland for an interdict, where it considers that, unless restrained, the person concerned may commit further acts of unlawful advertising or instructions or pressure to discriminate. The CEHR may apply for such an injunction in one of two circumstances: either where a court or tribunal has determined that such an act has been committed or where the CEHR believes that such an act has been committed or where the CEHR believes that such an act has been committed.

96     Subsection 6 provides that the CEHR's enforcement powers in this clause do not apply to the criminal offences in the SDA, RRA and DDA of making false or misleading statements about whether an advertisement is unlawful.

     Clause 28: Section 27: supplemental

97.     Clause 28 sets out the procedural rules governing the exercise of the CEHR's powers in relation to unlawful advertising, and instructions or pressure to discriminate under clause 27.

98.     Subsection (1) provides that the CEHR can only make an application to a court or tribunal under clause 27(3) for a determination that an act covered by clause 27 has taken place:

• within 6 months of the alleged unlawful act; or

• with the permission of the Employment Tribunal or court if after that 6 month time limit.

99.     Subsection (2) prevents the CEHR, when applying for an injunction under clause 27(5), from relying on the ruling of a court or tribunal under clause 27(4)(a) if there is an appeal pending against that ruling, or if it would still be possible for an appeal to be brought within the normal time limits.

100.     Subsection (3) provides that the CEHR can only apply to a county court for an injunction or to the sheriff in Scotland for an interdict under clause 27(5) or (6) restraining a person from doing an act covered by clause 27:

• within five years of the date on which the act last occurred; or

• with the permission of the court if after that five year time limit.

Clause 29: Conciliation

101.     Clause 29 gives the CEHR the power to make arrangements for the provision of conciliation services (as defined in subsection (7)) in relation to disputes where proceedings have been or could be brought under specified sections of the equality enactments (listed in subsection (1)). These are civil proceedings in respect of:

• goods, facilities and services, premises, public functions and education under the SDA

• goods, facilities and services, premises, public functions and education under the RRA,

• goods, facilities and services, premises, public functions and education under the DDA (except for proceedings about admissions and exclusions),

• goods, facilities and services, premises, public functions and education under the provisions for religion and belief in this Bill, and

• civil proceedings regarding further and higher education under the Employment Equality (Sexual Orientation) Regulations and the Employment Equality (Religion or Belief) Regulations.

102.     Subsection (2) requires the CEHR to exercise this power to ensure that, so far as reasonably practical, the conciliation services are available to those who want them.

103.     Subsection (3) prevents information communicated to a person providing conciliation services from being used in litigation without the consent of the party who provided the information.

104.     Subsection (4) excludes commissioners, CEHR staff, committee members and investigating commissioners from providing conciliation services.

105.     Subsections (5) and (6) require the CEHR to make administrative arrangements to prevent information connected with a conciliation case from being passed to a member of the CEHR or its staff, except in the following circumstances: where the parties to the dispute agree; where the information does not make the individuals identifiable (e.g. where information is provided in aggregate form); or where the information is necessary for conciliation arrangements to be made.

106.     Subsection (8) provides the Secretary of State with an order making power (specified in clause 41(4) as subject to an affirmative resolution procedure) to amend the list of legislative provisions in subsection (1) with respect to which the CEHR can arrange conciliation services.

     Clause 30: Legal assistance

107.     Subsection (1) enables the CEHR to give assistance to an individual who is a victim of discrimination and who is or may become a party to legal proceedings brought wholly or in part under the equality enactments. The CEHR will determine the criteria on which legal assistance is granted.

108.     Under subsection (2) the types of legal assistance which the CEHR may provide or arrange are legal advice, legal representation, facilities to settle the dispute or any other form of assistance. Such assistance may also include securing an arrangement to avert legal proceedings. This is distinguishable from the provision of formal conciliation services in clause 29 where both sides are able to meet with a conciliator to resolve a dispute about discrimination and harassment in relation to the provision of goods, facilities and services, education and the exercise of public functions.

109.     Subsection (3) prevents the CEHR from providing legal assistance in respect of the provisions of Part V of the DDA (public transport).

110.     Subsection (4) requires the CEHR to cease to provide legal assistance in respect of proceedings brought in part under the equality enactments and in part under other legislation, where the part of the proceedings relating to the equality enactments is no longer being pursued.

111.     Subsection (5) gives the Lord Chancellor an order making power to enable the CEHR to continue to provide assistance to individuals in proceedings which originally combined a complaint under both a provision of the equality enactments and Section 7(1) of the Human Rights Act, should the equality element of the proceedings fall away.

112.     Subsection (6) gives the Secretary of State an order making power to enable the CEHR to provide assistance in other proceedings (under legislation other than the equality enactments) where a disabled person seeks to rely on a matter relating to this disability. This could not, however, be used to permit assistance in respect of Part V of the DDA, which is expressly excluded under subsection (3) above.

     113.     Subsection (7) provides that the powers in subsections (5) and (6) may be exercised either in general terms, or in relation to particular types of proceedings or particular circumstances.

     Clause 31: Legal assistance: costs

114.     When a person who has been assisted by the CEHR becomes entitled to have his costs/expenses repaid to him by another party, this clause entitles the CEHR to recover its expenses (the amount of which may be determined by regulations made by the Secretary of State) out of costs awarded or paid by agreement.

115.     Under subsections (2) and (3) the CEHR is able to enforce the reimbursement as a debt, although the debt ranks after any obligation on the person to pay money to the Legal Services Commission in England and Wales and to the Scottish Legal Aid Board in Scotland.

Clause 32: Judicial review and other legal proceedings

116.     Clause 32 confirms that the CEHR has capacity to institute or intervene in legal proceedings where the proceedings are relevant to any of the Commission's functions, subject to any limitations imposed under legislation or by rules of court.

117.     Subsection 2 deems the CEHR to have the necessary title and interest in relation to any such legal proceedings in Scotland.

118.     The ability of the CEHR to bring judicial review proceedings is limited to its equality and diversity functions. This is because section 7(1) of the Human Rights Act 1998 permits Convention rights to be relied on only by a person who is (or would be) a victim of any breach. However, in furtherance of it functions the CEHR will be able to seek leave to intervene in all cases brought by third parties, including judicial review, covering human rights as well as equality.

     Clause 33: Public sector duties: assessment

119.     Clause 33 enables the CEHR to assess a public authority's compliance with the public sector duties for gender, race and disability, and requires it to do so if asked by the Secretary of State.

120.     Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, reports and recommendations and effects of recommendations. Commentary on Schedule 2 can be found in paragraphs 314 to 320 of this Explanatory Note.

     Clause 34: Public sector duties: compliance notice

121.     Clause 34 enables the CEHR to require a public authority to comply with its public sector duties for gender, race and disability.

122.     Subsection (2) enables the CEHR to issue a notice requiring a public authority to comply and to provide within 28 days written information of steps taken to comply with the duty.

123.     Subsection (3) provides that a notice issued under this section requiring information relevant to the CEHR for assessing compliance shall specify when and the manner and form in which the information is to be provided.

124.     Subsection (4) obliges the recipient of a compliance notice to comply with it.

125.     Subsections (6) and (8) enable the CEHR to apply to a county court or to the sheriff in Scotland for an order requiring the public authority to comply with the notice.

Clause 35: Equality and human rights enactments

126.     Subsection (1) defines the equality enactments which are referred to in clauses 8(1)(d) & (e), 23(2), 30 and 36 as the existing pieces of legislation dealing with promoting equality and combating discrimination on the grounds of sex (including married status and gender reassignment), race, disability, sexual orientation and religion or belief, together with Part 2 of this Bill. The Secretary of State may add to, remove from or vary the list of equality enactments by using the power contained in subsection (3) - which, in accordance with clause 41(4)(b), is subject to the affirmative resolution procedure.

127.     Subsection (2) defines the "equality and human rights enactments" which are referred to in clauses 12(1) and 12(2)(a)&(b). The enactments falling within this definition are the equality enactments defined in subsection (1) and the Human Rights Act 1998.

     Clause 36: Unlawful

128.     Clause 36 defines "unlawful" as used in clauses 8, 22, 23, 25 and 26 as contrary to provisions of the equality enactments listed in clause 35.

129.     Subsection (2) excludes certain activities which would otherwise meet the definition of unlawful in subsection (1) this includes breach of the public sector duties under the SDA, RRA and the DDA and breach of the public transport provisions in Part V of the DDA.

Clause 37: General

130.     Clause 37 sets out various definitions of terms used in Part I of the Bill. The clause provides that "act" includes deliberate omission. This is the definition used in the existing equality enactments.

131.     "Race" includes colour, nationality, ethnic origin and national origin. This follows the definition of racial grounds, racial group etc in section 3(1) of the RRA.

Clause 38: Dissolution

132.     Clause 38 provides for the Secretary of State, by order, to dissolve the EOC, CRE and the DRC (collectively referred to in relevant subsequent clauses as "the former Commissions") or to remove specified functions from them.

133.      Subsection (3) requires the Secretary of State to have exercised the order making power in subsection (1) to ensure that all the former Commissions cease to exist by 31st March 2009.

     Clause 39: Transfer of property, &c.

134.     Subsection (1) enables the Secretary of State, by an order under clause 38(1), to provide for the transfer of specified property, rights and liabilities from the former Commissions to the CEHR.

135.     Subsection (2) empowers the Secretary of State to direct any of the former commissions to provide information in respect of property, rights and liabilities and in relation to the exercise of any of their functions. It also provides for the Secretary of State to direct that a former Commission should transfer specified property, rights and liabilities to a specified person. The former Commissions can also be directed to make staff, property or facilities available to the CEHR. The Secretary of State can also direct the former commissions to stop taking certain specified action.

136.     Under subsection (3) the Secretary of State may direct a former Commission to prepare a scheme for the transfer of specified property, rights and liabilities to the CEHR or to any other person.

137 In preparing a scheme to transfer property, rights and liabilities, subsection (4) provides that the former Commissions must consult with either the CEHR or the person to whom the transfer is to be made. The transfer will come into effect once approved by the Secretary of State, subject to any modifications made.

     Clause 40: Transfer of property: supplemental

138.     Clause 40 is linked to the direction making power in clause 39. It stipulates that any direction by the Secretary of State under clause 39 must be made in writing, and only following consultation with the former Commissions and, if appropriate, the CEHR.

139.      The direction can only be varied or revoked by a further direction.

140.      Subsection (2) ensures that any action taken or in the process of being taken by a former Commission immediately prior to the transfer shall have the same effect after the transfer as if done by the CEHR (including any legal action).

141.     Any references to the former Commissions in agreements or other documents shall be taken as a reference to the CEHR after transfer.

142.     Subsection (4) allows for property, rights and liabilities to be automatically transferred irrespective of any requirement for consent or agreement that would ordinarily apply.

143.      Subsection (5) provides for the Transfer of Undertakings (Protection of Employment) Regulations 1981 to apply to the transfer of staff from the former commissions to the CEHR. The regulations safeguard the terms and conditions of staff. Subsection (5) provides that any scheme or order made under clause 39 must provide that continuity of employment is preserved for any purpose relating to an employee of a former Commission. This will protect existing pension arrangements.

Clause 41: Orders and regulations

144.     Clause 41 sets conditions under which a Minister of the Crown may make secondary legislation under Part 1 of the Bill. Subsection (1) requires all orders and regulations to be made by statutory instrument, and subsection (2) provides that any order or regulations may make provision generally or for specified purposes, make different provision for different purposes, and may include transitional, incidental or consequential provisions.

145.     Subsection (3) provides that certain orders and regulations are subject to the negative resolution procedure; namely

• any order extending the range of proceedings in which the CEHR may provide assistance (under clause 30(5) and (6));

• regulations concerning the calculation of the CEHR's expenses in legal proceedings (under clause 31(4));

• any order dissolving an existing commission (under clause 38(1)); and

• an order dissolving the Disability Committee (under part 5 of Schedule 1).

146.     Subsection (4) lists the order making powers which are to be subject to the affirmative resolution procedure, namely those which

• add or vary any entry in the list defining communities for the purposes of clause 11 (under clause 11(5));

• add, remove or vary any entry in the list of enactments in connection with which the CEHR can issue a Code of Practice (under clause 16(5));

• add, remove or vary any entry in the list of enactments in relation to which the CEHR can provide conciliation services (under clause 29(6));

• add, remove or vary any entry in the list of equality enactments (under clause 35(3)).

147.     These orders may make consequential amendments to any enactment, including an enactment in or under an Act of the Scottish Parliament.