Clause 42: Consequential amendments

148.     Clause 42 gives effect to the consequential amendments set out in Schedule 3

Clause 43: Transitional: the Commission

149.     Clause 43 creates a transitional period during which time only selected provisions dealing with the formation of the CEHR will take effect. The transitional period starts from the commencement of any of the establishment clauses (clauses 1 to 3) and Schedule 1. The transitional period ends when any of the CEHR's duties and powers in clauses 8 to 34 come into effect.

150.     During the transitional period, the minimum number of Commissioners will be five, instead of ten as stated in Paragraph 1 of Schedule 1. This will allow the CEHR to begin making decisions, at an early stage, in respect of establishing the CEHR.

151.      As soon as possible after the first appointments to the CEHR Board, the Secretary of State is required to appoint the three transitional Commissioners, as nominated by each chair of the former Commissions. The conditions of appointment of the three transitional Commissioners will mirror other Commissioners, although their positions will cease to exist not more than 2 years after the relevant former Commission loses its principal functions or ceases to exist. However, the transitional Commissioner for the DRC will vacate his/her post at the point that the Disability Committee takes on the full range of its responsibilities.

152.      The purpose of these transition appointments is to provide a link between the former Commissions and the nascent CEHR to ensure the smooth transition of functions, duties and staff from the former Commissions to the CEHR.

     Clause 44: Transitional: functions of the dissolved Commissions

153.     Under Clause 44, the order making power in clause 38 (1) can also provide for a former Commission to continue an action (referred to as a 'transitional case') they have started (e.g. a consultation exercise, code of practice, guidance etc) when the relevant related function transfers to the CEHR, or for the CEHR to exercise a function of a former Commission in relation to the transitional case, as specified in the order.

154.     Subsection (2) ensures a commencement order made to bring into force a provision of Schedule 3 or 4 may include any provision applying, disapplying or modifying a provision in this Act or any another enactment to ensure that an order under subsection (1) of this clause is able to take effect.

     Part 2: Discrimination on Grounds of Religion or Belief

Clause 45: Religion and belief

155.     Clause 45 defines what is meant by "religion or belief" for the purposes of this Bill. Subsection (a) defines "religion" as "any religion", a broad definition in line with the freedom of religion guaranteed by Article 9 of the ECHR. It includes those religions widely recognised in this country such as Christianity, Islam, Hinduism, Judaism, Buddhism, Sikhism, Rastafarianism, Baha'is, Zoroastrians and Jains. Equally, denominations or sects within a religion can be considered as a religion or religious belief, such as Catholics or Protestants within Christianity. The main limitation on what constitutes a "religion" for the purposes of Article 9 of the ECHR is that it must have a clear structure and belief system.

156.     Subsection (b) defines "belief" as "any religious or philosophical belief".

157.     Subsections (c) and (d) state that "lack of religion" and "lack of belief" are also covered by the phrase "religion or belief".

Clause 46: Discrimination

158.     Clause 46 defines discrimination on the grounds of religion or belief for the purposes of this Part. Subsections (1) & (2) define direct discrimination. This occurs where, on grounds of religion or belief, person A treats person B less favourably than he would treat others. For the purposes of the comparison which has to be made to determine whether one person has been treated less favourably than another, the relevant circumstances in each case must not be materially different. Subsection (2)(a) indicates that direct discrimination can occur even if it is not person B's religion or belief, but another person's religion or belief, which constitutes the grounds for discrimination. For example, it would apply if a shopkeeper refuses to serve a customer, not because of the customer's religion, but because of the religion of his friend who is in the shop with him. However, it does not apply where the less favourable treatment occurs solely on ground of A's religion or belief - for example where A feels motivated to take particular action because of what his religion or belief requires. Subsection (2)(b) indicates that discrimination can also occur even if A is mistaken as to B's religion: i.e. if person B is not of the religion presumed by person A. So if a shopkeeper refuses to serve a customer because he believes that he belongs to a certain religion, it is irrelevant whether or not the customer is actually of that religion, he could still use this Part to bring a case of religious discrimination against the shopkeeper.

159. Subsection (3) defines indirect discrimination. This occurs where person A applies to person B a requirement, condition or practice, which he applies equally to other people, but which puts people of person B's religion or belief at a disadvantage compared with some or all other people. Person B must also have personally suffered a disadvantage compared to some or all persons not of his religion or belief. It would not be unlawful however if the action causing disadvantage to person B could be reasonably justified by reference to matters other than B's religion or belief: for example, if it was performed to meet security or health and safety concerns, or if the efficiency of a business would be seriously jeopardised by failure to take the action complained about.

160.     Subsections (4) & (5) define victimisation. This occurs where person A treats person B less favourably than others because person B: has brought, or intends to bring, proceedings under these religious discrimination provisions; has given or provided, or intends to give or provide, evidence or information in connection with such proceedings; or has done, or intends to do, any other thing in connection with this Part (including an allegation that a person has contravened it). Victimisation will also have taken place if person A treats less favourably than others because he suspects that person B has done any of these things. It will not be victimisation however, if person A's treatment of person B relates to B's making, other than in good faith, a false allegation.

     Clause 47: Harassment

161.     Clause 47 defines harassment on the grounds of religion or belief for the purposes of this Part. Harassment is distinct from the forms of discrimination described in clause 46. Harassment takes place when person A acts in any way that violates person B's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for person B.

162.     By virtue of subsection (2)(a), harassment can occur even if it is not B's religion or belief which constitute the grounds of harassment. For example, someone working for a public body may harass a recipient of a service (B) not by offending B's religious beliefs, but by making hostile remarks about the beliefs of B's wife.

163.     Subsection (2)(b) indicates that harassment can take place even if B is not actually a member or follower of the religion that person A presumes him to be.

164.     Subsection (3) provides that action is to be regarded as harassment under this provision only if it can reasonably be regarded as having that effect having regard to (a) how B perceives it and (b) the overall circumstances of the case in question.

165.     By virtue of subsection (4), A's, action will not be regarded as harassment if B wants it to happen.

     Clause 48: Goods, facilities and services

166.     Under clause 48, discrimination on the grounds of religion or belief in the provision of goods, facilities and services (by a person whose business or concern it is to provide them to the public or a section of the public) is made unlawful. Thus it will be unlawful for such a person, on the grounds of religion or belief, to:

• refuse to provide goods, facilities or services to a person who seeks to obtain or use them;

• provide such a person with goods, facilities or services of inferior quality to those which would normally be provided to members of the public or to a section of the public to which the recipient belongs;

• provide goods, facilities or services in a different manner (e.g. more hostile or less courteous) than they would normally be provided to members of the public or to a section of the public to which the recipient belongs; or

• provide goods, facilities or services on different terms (e.g. less favourable) than those on which they would normally be provided to members of the public or to a section of the public to which the recipient belongs.

167.     Subsection (2) lists examples of the types of facilities and services in relation to which discrimination under subsection (1) would be unlawful.

168.     Subsection (3) ensures that, where a person exercises a skill in a particular way for the purposes of a particular religion (e.g. the preparation of food), he will not be compelled by this clause to exercise it in a different manner for the purposes of another religion.

169.     Subsection (4) ensures that this clause will not apply when the service is provided by a person exercising a public function (these are covered in a later clause) or where discrimination in the provision of such a service is addressed by another provision of Part 2 or the Employment Equality (Religion or Belief) Regulations 2003, which prohibit discrimination on the grounds of religion or belief in the fields of employment and vocational training.

170.     Subsection (5) clarifies that the provision of goods, facilities and services will be caught by this Part irrespective of whether or not the recipient has to pay for them.

Clause 49: Premises

171.     Clause 49 covers the disposal and management of premises, making it unlawful for anyone selling or letting premises to discriminate against potential buyers or tenants because of their religion or belief and for landlords or other managers of premises to discriminate against tenants or other occupiers. This would include refusing to dispose of premises to people of a certain religion or belief; offering less generous terms to people of a certain religion or belief; or deliberately discriminating against people of a certain religion or belief on a list of those requiring housing.

172.     Subsection (2) refers specifically to managers of premises (which would include landlords) and their treatment of tenants. It makes unlawful any discriminatory behaviour by a manager of premises on account of the religion or belief of a tenant or other occupier (e.g. a licensee). This would cover all aspects of a manager's duties towards a tenant or other occupier, including the facilities he would provide and the terms under which he would evict a person.

173.     Subsections (3) and (4) mean that it will be unlawful for a landlord to harass an occupier, or for someone involved with the disposal of premises to harass a prospective buyer or occupier.

174.     Subsection (5) relates to a situation where a person's permission is required for the disposal of someone else's interest in a property - the executor of someone's will for example - and it ensures that such permission cannot be withheld in a discriminatory way.

175.     Subsection (6) restricts the operation of this clause to premises in Great Britain. It does not extend to premises abroad, even if the actual sale or letting of the property takes place in this country.

Clause 50: Section 49: exceptions

176.     Clause 50 creates an exception to the provisions in clause 49. It will not be unlawful for a landlord to discriminate in who he rents out a part of his premises to, if:

• he or a near relative lives in another part of the same premises (and intends to continue to do so);

• the premises include parts that he or a near relative would share with the tenant such as a bathroom or kitchen; or

• the premises are of a size where no more than two households, or six individuals, can live in the premises in addition to the landlord or a near relative.

177.     Subsection (2) defines what "near relative" means for the purposes of subsection (1).

178.     Subsection (3) lists other circumstances where the provisions in clause 49 will not apply, and religious discrimination in the disposal of premises will not be unlawful: namely, where a person owns an estate or interest in the premises, or occupies the whole of the premises, and does not use estate agent to dispose of the premises and does not arrange for publication of an advertisement for the purposes of disposing of the premises

     Clause 51: Educational establishments

179.     Clause 51 extends the prohibition against discrimination or harassment on the ground of religion or belief to the educational establishments listed in the Table set out in the clause. This Table also indicates who is the responsible body for the purposes of this Part of the Bill, in relation to each educational establishment listed. The Table does not extend to educational institutions or establishments in the further or higher education sectors as these are covered by existing secondary legislation. ¹

     

¹ SI 2003/1660 Employment Equality (Religion or Belief) Regulations 2003

180.     The clause makes it unlawful for an educational institution to discriminate against a person in respect of the terms on which it offers them admission as a pupil or refusing to accept an application to admit as a pupil. Where a person is already a pupil of the establishment it is unlawful to discriminate against them in the way the establishment affords them access to any benefit, facility or service or by refusing such access. It is also unlawful to exclude a pupil or subject them to any other detriment. A pupil of the establishment includes any person who receives education at the establishment.

181.     Under subsection (2), it will be unlawful for the responsible bodies listed in the Table to harass either a pupil at an establishment or a person who applies to be admitted as a pupil.

182.     Subsection (3) requires that, for England and Wales, the terminology used in any of the Education Acts would have the same meaning in this Part. Subsection (4) requires that, for Scotland, the terminology used in the Education (Scotland) Act 1980 (c.44) would have the same meaning in this Part.

Clause 52: Section 51: exceptions

183.     Subsection (1) of this clause exempts maintained schools which have a religious character (often referred to as faith schools) from the prohibition in the previous clause. It also exempts independent schools if such schools have a religious ethos, schools conducted in the interest of a church or denominational body, and, in Scotland, independent schools that admit only pupils who belong - or whose parents belong - to one or more particular denomination. The provision will therefore allow all such schools with a religious ethos to admit pupils or set admission terms for pupils based on the religious character or religious ethos of the school. It will also allow such schools to conduct themselves in a way which is compatible with their religious character or ethos.

184.     Subsection (2) provides that the provisions in clause 51 that relate to the access to benefits, facilities and services provided to pupils and to the religious harassment of pupils, will not apply to the school curriculum or to religious worship that takes place in educational institutions. The reference to curriculum is to the basic curriculum which includes the National Curriculum. This particular exemption reflects the need to protect existing legislation in respect of the content of the curriculum and religious worship. Existing education legislation allows for parents to withdraw their children from sex education, religious education and collective worship, but not from other parts of the curriculum covered by subsection (2)(a). While parents can remove their children from collective worship, educational institutions are under no obligation to provide opportunities for separate worship of different religions and beliefs represented among its pupils. The exception in subsection (2)(b) maintains that position.

185.     Subsection (3) provides for a regulation-making power by which the Secretary of State can amend or repeal an exception set out in this clause, or can create a new exception from the prohibitions in clause 51. Subsection 4 expands on this, specifying the conditions required for the Secretary of State to make such a regulation, including the need for consultation with appropriate bodies and the approval of both Houses of Parliament.

Clause 53: Local education authorities and education authorities

186.     Clause 53 makes unlawful discrimination or harassment by Local Education Authorities (LEAs) in England and Wales, and Education Authorities in Scotland, except in the areas listed in subsections (2), (England and Wales) and (3) (Scotland), namely:

• ???The provision of schools - section 14 of the Education Act 1996 (and, for Scotland, section 17 of the Education (Scotland) Act 1980) defines the LEA function of providing primary and secondary schools for children in a given catchment area. Clause 53, subsection (2)(a) ((3)(a) for Scotland) allows discrimination in this area, to prevent an LEA being bound to provide schools for pupils of different faiths, or of no faith, in the catchment area.

• ???Transport - LEAs often provide subsidised transport for pupils of a particular (often faith) school that is located outside the local area. Subsection (2)(b) ((3)(b) for Scotland) allows discrimination in this, area so that LEAs do not have to provide subsidised transport for all faith or non-faith schools.

• ??? General responsibilities - section 13 of the Education Act 1996 (and equivalent provision in legislation for education in Scotland) describes the responsibilities incumbent on LEAs to contribute to the spiritual, moral, mental and physical development of the community through their provision of education to children. Clause 53, subsection (2)(c) ((3)(c) for Scotland) allows discrimination in the exercise of these responsibilities in so far as they relate to the two previous points: provision of schools and transport.

• ???Subsection (2)(d) ((3)(e) for Scotland) refers to the Table featured in clause 51. It means that clause 53 does not apply to discrimination by LEAs in the exercising of their specific functions as responsible bodies for the educational establishments listed in the Table.

Clause 54: Public authorities: general

187.     Subsection (1) prohibits discrimination and harassment on grounds of religion or belief in the exercise of the functions of all public authorities.

188.     Subsection (2) defines "public authority" as including any person who has functions of a public nature and "function" as any function of a public nature.

189.     Exceptions to these provisions are set out in subsections (3) & (4). Subsection (3) follows the pattern of similar legislation and excepts a list of bodies, such as the Houses of Parliament, the Security Services and GCHQ.

190.     Subsections (4)(a)-(e) exclude the exercise of judicial functions and legislative processes (including those of the General Synod of the Church of England). Subsection (4)(f) excepts a decision to prevent someone entering the country, or to deport someone from the country.

191.     Subsection (4)(g) excepts a decision related to criminal proceedings, where a decision has been taken not to prosecute.

192.     Subsections (4)(h) (i), (iii), (v) and (vi) except from the provisions of this clause (insofar as they are not excepted elsewhere), any public functions concerned with a number of areas that relate to faith and non-faith educational institutions. Those areas are:

• ???Curriculum - the prohibitions in this clause will not apply to the school curriculum. See the note for clause 52(2)(a).

• ???Religious worship - the prohibitions in this clause will not apply to religious worship in schools. See the note for clause 52(2)(b).

• ???Transport - an LEA or other responsible body can arrange transport to a faith school for those pupils who live a distance away and they will not be obliged by this legislation to provide a similar service for pupils at another faith or non-faith school.

193.     Subsections (4)(h)(ii) and (iv) except further functions from the provisions in this clause, but only for those schools which have a religious ethos. Those functions are:

• ???Admissions -faith schools can operate a selective admissions policy, prioritising those children of a specific religion or belief.

• ???Governing bodies - religion or belief can be part of the criteria in the selection of governors for schools with a religious ethos, and places on the governing body may be restricted to people of that religion or belief.

194.     Subsection (4)(i) excepts from this clause actions which are provided for by another provision of this Part, or by the provisions in the Employment Equality (Religion or Belief) Regulations 2003.

195.     Subsection 4(j) (and expanded on in subsection (8)) creates an order-making power, enabling the Secretary of State to make further exceptions, or to remove or amend existing exceptions. This power is to be subject to the affirmative resolution procedure.

196.     When the court is hearing a case brought in respect of clause 54, it cannot grant an injunction unless it is satisfied that to do so will not prejudice any criminal proceedings or a criminal investigation. Similarly, a court must stay or sist proceedings brought in respect of clause 54 when there is a risk that criminal proceedings or a criminal investigation could be prejudiced by the case continuing.

197.     Subsection (6) refers to clause 71 (4). It relates to the answers that a person, accused of an unlawful act under this Part, must give to a questionnaire prescribed by the Secretary of State, and the inferences that can be drawn from his failure to answer properly or at all. Under subsection (6), inferences cannot be drawn from an absent or evasive answer if:

• the person questioned reasonably asserts that there was a risk of prejudicing criminal proceedings or a criminal investigation, or of revealing the reason for not instituting or not continuing criminal proceedings; or

• the reply is of a kind, or is given or withheld in circumstances specified, in an order by the Secretary of State.

Clause 55: Discriminatory practices

198.     Clause 55 makes it unlawful to operate a practice which results in unlawful discrimination or harassment, or which is likely to result in unlawful discrimination if applied to persons of any religion or belief. Subsection (2) also makes it unlawful to adopt or maintain a practice or arrangement which has the potential to result in a practice which is unlawful under this clause.

199.     Subsection (3) makes clear that the unlawful discrimination or harassment referred to in this clause is that which is unlawful under the preceding provisions of this Part.

200.     Subsection (4) provides that the CEHR is to be the only body entitled to bring proceedings in respect of discriminatory practices, and must do so by means of its powers in clauses 22-26 of the Bill (investigations, unlawful act notices and action plans, agreements and applications to court to enforce these).

Clause 56: Discriminatory advertisements

201.     Clause 56 makes it unlawful to publish or cause to be published an advertisement which indicates an intention to discriminate unlawfully. For example an advertisement for a car for sale in which it was expressed that persons of a certain religion would not be welcome to respond. The unlawful discrimination referred to in this clause is that which is unlawful under the preceding provisions of clauses 48 to 54 .

202.     Subsection (3) makes it clear that only the CEHR is to be entitled to bring proceedings in respect of unlawful advertisements and must do so in accordance with its powers set out in clause 27. Subsection (4) provides a defence for the publisher of an unlawful advertisement, where it was reasonable for him to rely on a statement by the person causing the advertisement to be published, that the prohibition in subsection (1) would not apply