|Equality Bill - continued||House of Commons|
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Clause 57: Instructing or causing discrimination or harassment
203. Clause 57 makes it unlawful to instruct, cause or induce, or attempt to cause or induce, another person to discriminate or harass unlawfully.
204. Subsection (5) makes clear that the discrimination or harassment referred to in this clause is that under earlier clauses in this Part.
205. Subsection (6) provides that only the CEHR is entitled to bring proceedings in respect of a contravention of this clause and must do so in accordance with its powers set out in clause 27.
Clause 58: Statutory requirements
206. Clause 58 provides a general exception from this Part for anything done for the purpose of complying with legislation made by Parliament, Ministers or other bodies in Great Britain empowered to make legislation.
Clause 59: Organisations relating to religion or belief
207. Clause 59 creates an exception from this Part for organisations whose purpose is to practice, advance or teach a religion or belief, to enable people of a certain religion or belief to benefit from or engage in religious activities, or to improve relations, or maintain good relations, between people of different religions or beliefs. This does not include an organisation whose sole or main purpose is commercial.
208. Subsection (3) provides that it is not unlawful under this Part for an organisation, or anyone acting on behalf of or under the auspices of an organisation -
209. Subsection (4) provides that it is not unlawful under this clause for a minister of religion (as defined in subsection (6)), acting in connection with an organisation to which this clause relates:
210. Subsection (5) limits the restrictions described in subsections (3) and (4) to those necessary (a) having regard to the organisation's purposes, or (b) to avoid causing offence on grounds of that organisation's religion or belief, to persons of that religion or belief.
Clause 60: Charities relating to religion or belief
211. Clause 60 provides an exception from this Part, for anything done in pursuance of a charitable instrument which provides for the conferring of benefits on persons of a specified religion or belief.
Clause 61: Faith schools, etc.
212. Clause 61 provides that it will not be unlawful under this Part for schools with a religious ethos to restrict the provision of goods, facilities or services or to restrict the use of their premises, to ensure that the purpose for which the premises would be used does not conflict with the tenets of the school's faith (or faiths).
213. Subsection (3) provides that references in this Part to the provision of facilities or services (for example in clause 48) do not apply to the provision of educational facilities and services to students attending an educational institution.
Clause 62: Education, training and welfare
214. Clause 62 provides an exception from Part 2 for anything done to meet the special needs of people of particular religions or beliefs in relation to their education, training or welfare, or the provision of ancillary benefits in connection with meeting such needs.
Clause 63: Care within family
215. Clause 63 provides an exception from Part 2 where a person takes into his home, and treats as a member of his family, a person requiring a special degree of care and attention. An example would be the fostering of a child. The welfare of the child would take precedence over any question of religious discrimination.
Clause 64: National security
216. Anything done for the purpose of safeguarding national security will be exempt from the prohibitions introduced by this Part, providing that the national security requirement justifies the action in question.
Clause 65: Amendment of exceptions
217. Clause 65 provides an order-making power by which the Secretary of State can add a new exception to the prohibitions in this Part, change an existing exception or remove an existing exception. Subsection (2) requires that the Secretary of State consult with the CEHR before making such an order, which is subject to the affirmative resolution procedure.
Clause 66: Restriction of proceedings
218. Clause 66 provides that proceedings in respect of an act which will be unlawful under this Part, can only be brought in accordance with the provisions in this Bill. This restriction will not however, prevent an application for judicial review; proceedings under any of the Immigration Acts, or the Special Immigration Appeals Commission Act 1997; or, in Scotland, the Court of Session exercising its jurisdiction with regard to an order or determination.
Clause 67: Claim of unlawful action
219. Clause 67 relates to the mechanism for bringing a claim against someone in respect of an act made unlawful by this Part:
Clause 68: Immigration
220. Clause 68 provides that proceedings may not be brought under clause 67 in a county or sheriff court in respect of an act of a public authority, if the lawfulness of the act could be raised in immigration proceedings - that is, proceedings under any of the Immigration Acts or the Special Immigration Appeals Commission Act 1997 (c.68).
221. If, during immigration proceedings a court or tribunal finds that an unlawful act has been committed by a public authority under clause 54, then a county or sheriff court hearing proceedings, as per clause 67, must accept that finding.
Clause 69: Remedies
222. Clause 69 sets out the remedies available to a county court (the sheriff in Scotland), hearing proceedings as described under clause 67:
Clause 70: Timing
223. Proceedings under clause 67, must be brought either within six months of the alleged unlawful act, or if later, with the permission of the court.
224. Subsection (2) specifies that for immigration cases - that is, proceedings brought under any of the Immigration Acts or the Special Immigration Appeals Commission Act 1997 (c.68) - the six month period starts from the first possible date that proceedings could begin under clause 67.
Clause 71: Information
225. Clause 71 indicates the way that information can be obtained by someone (a "claimant or potential claimant" in England and Wales and a "pursuer or potential pursuer" in Scotland), from the person who he thinks has acted unlawfully against him under this Part (a "respondent or potential respondent" in England and Wales and a "defender or potential defender" in Scotland), so as to assist in his decision about whether or not to take proceedings.
226. Subsection (2) refers to the question forms prescribed by the Secretary of State which a claimant (or pursuer) can use to question a respondent (or defender), and by which the respondent (or defender) can reply.
227. Under subsection (3), both the claimant's (or pursuer's) questions and the l respondent's (or defender's) answers, will only be admissible as evidence in a case brought, if the questions were put within six months of the alleged unlawful act taking place and in a manner prescribed by an order of the Secretary of State (subject to negative resolution). The Secretary of State can amend that time period by an order, which is subject to the affirmative resolution procedure.
228. Under subsection (4), a court may draw an inference from a respondent's failure to reply within eight weeks, at all or unequivocally, to questions put to him by a potential claimant. See clause 69 (6) for exceptions to this in relation to questions which could affect criminal investigations or prosecutions.
Clause 72: National security
229. Clause 72 provides for rules of court to make provision permitting a court to take various forms of action which are considered expedient in the interests of national security. This is equivalent to section 67A of the Race Relations Act 1976 (as inserted by the Race Relations (Amendment) Act 2000). The power in this clause will make it possible to make rules enabling the court, when considering proceedings brought under this part of the Bill:
230. Where the claimant or representatives are excluded from part or all of proceedings under such rules, this clause provides for the Attorney General or Advocate General for Scotland to appoint a special advocate to represent the interests of the claimant
Clause 73: Aiding unlawful acts
231. Clause 73 makes it unlawful to knowingly help someone (whether or not as his employee or agent) to do an act that is unlawful under this Part. Subsection (2) makes it an offence (punishable by a fine not exceeding level 5 on the standard scale) when requesting assistance from another person, to falsely state that a proposed act is lawful under Part 2.
Clause 74: Employers' and principals' liability
232. Clause 74 has the effect that an employer is liable for the acts of his employees, whether or not he knew or approved of those acts. Similarly, a principal will be liable for the acts of his agent.
233. An employer will not be liable if he can prove that he took all reasonable steps to ensure that the employee could not perform the discriminatory act.
234. This clause will not apply to the offence of making a false statement in relation to a discriminatory advertisement under Clause 56.
Clause 75: Police
235. Clause 75 applies to members of police forces under the Police Act 1996 (c.16) or the Police (Scotland) Act 1967 (c.77), and special constables and police cadets appointed in accordance with either of those Acts.
236. Under subsection (2), such a person is treated as an employee of his chief officer of police for the purposes of this Part, and anything done by him in the course of his duties is to be treated as done in the course of that employment.
237. Under subsection (3), compensation, costs or expenses awarded against or incurred by a chief officer of police, in proceedings brought against him under this Part, will be paid out of the police fund. The police fund will also provide for any sums required by a chief officer of police for the settlement of a claim made against him under this Part.
Clause 76: Indirect provision of benefit, etc.
238. Clause 76 means that someone who has the power to facilitate access to a service, facility or benefit of any kind is subject to the prohibition in this Part as much as the actual provider of these things. An example would be a social worker who facilitates access to various counselling or welfare services. This provision would make it unlawful for such a person to refuse to facilitate this access to a particular family because of their religion or belief.
Clause 77: Employment Equality Regulations
239. Clause 77 is intended to ensure consistency, with regard to the definition of "religion or belief", between this Part and the Employment Equality (Religion or Belief) Regulations 2003 (S.I. 2003/1660). It remains in accordance with the wording in Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment, as implemented by those regulations.
Clause 78: Crown application
240. Clause 78 provides that the provisions of Part 2 are to apply to acts done on behalf of the Crown as they apply to acts done by a private person. In addition clause 54 binds the Crown whatever the nature of the acts. Subsection (3) indicates that acts are to be treated as done on behalf of the Crown, if done by - or on behalf of:
Clause 79: Interpretation
241. Subsection (1) defines "charity" for the purpose of this Part. It has the meaning given by the Charities Act 2005 and, for Scotland, it means a recognised body within the meaning given by section 1(7) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40).
242. Subsection (2) indicates that in this Part, references to either action or refusal include a reference to deliberate omission.
Clause 80: Territorial application
243. The provisions of this Part apply to anything done:
244. Under subsection (3), Clause 54 (4)(f), which includes the function of granting someone entry into the UK, applies to anything done inside or outside the UK.
245. Under subsection (5), the provisions of this Part will not apply to anything done in or over a country other than the UK, or in or over the territorial waters of a country other than the UK.
Part 3: Public Functions; Sex Discrimination
Clause 81: Prohibition of Discrimination
246. Clause 81 inserts a new section 21A into Part III of the SDA, which deals with non employment cases. New section 21A will make it unlawful for a public authority to discriminate on grounds of sex when carrying out its functions. In practice this will mean that Ministers, local authorities, the police and other governmental organisations are not permitted to discriminate on the grounds of a person's sex when exercising their public functions. This prohibition of sex discrimination in public functions ("the prohibition") will bring the SDA into line with section 19B of the RRA. The current Disability Discrimination Bill also similarly extends the DDA by inserting a new section 21B into the DDA.
247. An individual who has been discriminated against contrary to new section 21A will be able to bring proceedings in a county court (or a sheriff court in Scotland) in accordance with section 66 SDA.
248. New sections 21A(4) & (9) set out the functions and actions which are excluded from the general prohibition. New section 21A(3) excludes the Houses of Parliament and the intelligence services from the requirement not to discriminate.
249. The exempted functions and actions in new section 21A(4) and the Table of Exceptions in new 21A(9) include:
250. The exceptions for services that are provided separately (items 8 - 12 in the Table of Exceptions at new 21A(9)) allow public authorities to provide services only to one sex, or to provide separate or different services for men and women when the circumstances or need are such that it would not be reasonably practicable to do otherwise. For example, it will allow healthcare to be provided for gender-specific conditions such as ovarian or prostate cancer; and for support services for women who have suffered domestic abuse to be provided in a single sex environment.
251. New section 21A also contains a provision to prevent there being any overlap between the new provision and the existing provisions of the SDA.
252. An order-making power in new section 21A(5) allows the Secretary of State to make additional exemptions after consultation with the CEHR and subject to affirmative resolution of each House of Parliament. (The consultation will be with the EOC until the CEHR takes on responsibility for sex discrimination issues and thereafter with the CEHR).
253. New section 21A(6) (7) & (8) introduce changes to the enforcement provisions in section 66 of the SDA to ensure that proceedings brought under new section 21A will not prejudice the outcome of a related criminal investigation or criminal proceeding. They also amend the questionnaire procedure in section 74 SDA, so that a court will not be able to draw inferences from a failure to respond to a questionnaire if that was necessary to avoid prejudice to a criminal investigation or criminal proceeding.
Clause 82: General duty to promote equality &c.
254. Clause 82 amends the SDA by inserting into that Act new section 76A. The effect of this provision is to impose on public authorities a duty to promote equality of opportunity that is similar to the duty imposed by section 71 of the RRA (as substituted by section 2 of the Race Relations (Amendment) Act 2000 (RRAA)) and the duty to be imposed by clause 3 of the Disability Discrimination Bill which will insert new section 49A into the DDA. .
255. New section 76A(1) imposes a general duty on public authorities when carrying out their public functions, either as employers or service providers, to have due regard to the need to eliminate unlawful discrimination, and to promote equality of opportunity between men and women. This general duty will be enforceable through judicial review, rather than creating a cause of action for individuals in private law.
256. New section 76A(2) extends the definition of a public authority to include any person to the extent that he has functions of a public nature. This would include, for example, a private security firm contracted to provide a public function e.g. to run a prison. It is only the public functions of private companies that are covered. Core public bodies like Government Departments, local authorities, the police and other governmental bodies are all public authorities. This new section also confirms that the duty also covers contravention of the Equal Pay Act 1970.
257. New section 76A(3) excludes certain bodies from the definition of public authority, in particular the Houses of Parliament, Scottish Parliament, General Synod of the Church of England and the intelligence services. There is also a power for the Secretary of State to extend this list of bodies by order (subject to the negative resolution Parliamentary procedure).
258. New section 76A(4) exempts certain functions from scope of the general duty: functions in connection with proceedings in the Houses of Parliament and the Scottish Parliament (though not the Scottish Parliamentary Corporate Body) and the exercise of judicial and related functions. There is also a power for the Secretary of State to extend this list of functions by order also subject to negative resolution Parliamentary procedure.
259. New Section 76A(5) confirms that the general duty to promote equality of opportunity between men and women does not override any exception or limitation in law which permits sex discrimination.
Clause 83: Specific duties
260. Clause 83 inserts new sections 76B and 76C in to the SDA.
261. New section 76B empowers the Secretary of State to impose by order, specific duties on public authorities, other than certain Scottish bodies, to ensure the better performance by them of the general duty in section 76A(1). This order will be subject to the negative resolution parliamentary procedure. The Secretary of State is obliged to consult the CEHR before making such an order. The provision does not confer rights on individuals to complain about a failure by a public authority to comply with a specific duty.
262. In respect of specific duties being imposed in Wales, new section 76B(3) confirms that the Secretary of State must (i) consult the National Assembly for Wales before imposing specific duties on any person exercising functions in relation to Wales ; and (ii) gain the consent of the National Assembly for Wales before imposing specific duties on a person all of whose functions are public functions in relation to Wales.
263. New section 76C includes provisions empowering Scottish Ministers to set specific duties in respect of certain Scottish bodies, to ensure the better performance by them of the general duty. In the case of cross border public authorities (within the meaning of Section 88(5) of the Scotland Act 1998), the Secretary of State may impose, by order, duties in respect of the functions which are not Scottish functions (i.e. those which are not devolved) , and the Scottish Ministers may impose, by order, duties in respect of their Scottish functions (i.e. those which are devolved). New section 76C(6) also requires that, before placing cross-border public authorities under specific duties, the Secretary of State must consult Scottish Ministers. Similarly, new section 76C(7) requires that, before placing cross-border public authorities under specific duties, the Scottish Ministers must consult the Secretary of State.
264. New section 76D sets out the framework for the enforcement of specific duties imposed by order under 76B(1) or 76C. The CEHR may serve a compliance notice on a public authority where it is satisfied that the authority is not complying with any specific duty. A compliance notice will require the pubic authority to (i) comply with the duty and (ii) inform the CEHR within 28 days (beginning with the date on which the notice is given), of action it intends to comply with the duty. The notice could also require the public authority to provide the CEHR with information additionally specified in the notice in order to verify that the duty has or is being complied with. The new section also enables the CEHR to apply to a county court for an order to require the public authority to comply with the notice, if the CEHR thinks that the public authority has not done so.
|© Parliamentary copyright 2005||Prepared: 8 March 2005|