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Clause 84: Codes of Practice
265. Clause 84 inserts a new section 76E into the SDA
266. New Section 76E gives the CEHR, the power to draw up and issue a Code of Practice about performance of both the general duty in clause 81 and the specific duties to be imposed by clause 82. The CEHR can issue Codes of Practice on its own volition, and must do so if requested by the Secretary of State. There is also a requirement for the Secretary of State to consult Scottish Ministers and the National Assembly of Wales before approving a draft code or commencing a code.
267. In respect of clauses 82 and 83 which introduce new sections 76A to 76C into the SDA, the EOC will have responsibility for enforcing the general duty and the specific duties to be imposed by secondary legislation, in the period of time before the CEHR becomes operational. During this interim period, the EOC will also be responsible for preparing and issuing Codes of Practice under new section 76E in relation to the general duty and the specific duties. The procedural requirements applying to Codes of Practice prepared under section 56A of the SDA are to apply to the issuing of codes whilst the EOC is responsible for issuing the Codes referred to in clause 84.
Clause 85: National Security
268. Clause 85 inserts a new section 66B into the SDA.
269. New Section 66B allows for county & sheriff court rules 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 RRA which was introduced by the RRAA. The power in section 66B will allow rules to be made to allow the court, when considering proceedings brought under this part of the SDA:
270. Where the claimant or representatives are excluded from part or all of proceedings under such rules, new section 66B(2) allows the Attorney General or Advocate General for Scotland to appoint a special advocate to represent the interests of the claimant. Subsection (2) makes an amendment to the equivalent provision in the RRA to ensure that a special advocate may be appointed where either the claimant or the representatives or both are excluded. As currently drafted, the RRA provision only allows for the appointment of a special advocate where both the claimant and the representatives are excluded.
Part 4: General
Clause 86: Repeals
271. Clause 86 gives effect to the repeals set out in Schedule 4.
Clause 87: Crown application
272. Clause 87 provides that Ministers of the Crown, government departments and other agents of the Crown are bound by the Bill. The CEHR will therefore be able, inter alia, to investigate Government and other public bodies and use its powers to require them to give information. This Bill will however not affect Her Majesty in Her private capacity or in right of Her Duchy of Lancaster or the Duke of Cornwall.
Schedule 1: The Commission: Constitution &c
273. Schedule 1 sets out provisions relating to: the constitution of the CEHR; its members (the commissioners) 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 committees; preparation of its annual report; remuneration of commissioners and staff; its financial arrangements; its status; and the Disability Committee. In particular:
Schedule 1, Part 1: The Constitution
274. Paragraph 1(1) establishes that there shall be no less than 10, and no more than 15, members of the CEHR, who shall be known as commissioners, and who shall be appointed by the Secretary of State. In addition to these commissioners, the chief executive of the CEHR will also be a commissioner by virtue of holding that office.
275. Paragraph 2(1) requires the Secretary of State, when appointing commissioners, to have regard to the fact that it would be desirable for them together to have knowledge and experience relating to their functions, including in particular discrimination and human rights.
276. Paragraph 2(2)(a) requires the Secretary of State to appoint at least one commissioner who is or has been a disabled person;
277. Paragraph 2(2)(b) requires the Secretary of State to appoint, with the consent of Scottish Ministers, one commissioner who knows about conditions in Scotland.
278. Paragraph 2(2)(c) requires the Secretary of State to appoint, with the consent of the National Assembly of Wales, one commissioner who knows about conditions in Wales.
279. Paragraph 3 provides that a commissioner can be appointed for a specified period of between two and five years, and that reappointment can be made once this term has expired. It requires a commissioner to give notice in writing to the Secretary of State if he or she wishes to resign, and enables the Secretary of State to dismiss any commissioner who is unable, unfit or unwilling to fulfil his or her functions.
280. Paragraph 4 provides for the terms of appointment of the Chairman and deputy Chairman. It sets out the functions of the Chairman, and deputy Chairman, and the procedures necessary should they vacate office or resign their post. It also specifies that the Chief Executive cannot be appointed Chairman or deputy Chairman of the CEHR.
Schedule 1, Part 2 : Proceedings
281. Paragraphs 5 and 6 allow the CEHR to regulate its own proceedings. A minimum of five commissioners must be present when the procedure regarding quorum for meetings is established.
282. Paragraphs 7 and 8 require the CEHR to appoint, with the approval of the Secretary of State, a Chief Executive and may appoint other staff as appropriate. The Secretary of State must also approve the overall number and terms of conditions of staff.
283. Paragraph 9 permits the CEHR to appoint also an Investigating Commissioner to carry out an investigation, other enforcement action, and inquiries.
284. The CEHR may delegate any of its functions to another commissioner or to staff. The CEHR can also establish advisory or decision-making committees, which can be made up of commissioners, staff and external members. Decision making committees must be chaired by a commissioner and can have any function delegated to them.
285. Paragraphs 16 to 31 set out the requirements for the CEHR to establish a Scotland Committee and a Wales Committee. Each committee shall be chaired by the relevant Commissioner with knowledge of conditions in Scotland or Wales. The committees have an advisory role in respect of the CEHR's functions insofar as they affect Scotland and Wales respectively. The CEHR is obliged to consult the Scotland or Wales Committee before undertaking a function that, in its opinion, may affect people in Scotland and Wales respectively.
286. The Committees have delegated decision-making powers in respect of the activities listed in clause 14 in so far as the activities, in the opinion of the CEHR, affect Scotland and Wales. They will also have delegated power under clause 12(2)(c) and section 12(2)(d) to provide advice to the devolved administrations in respect of law which, in the opinion of the CEHR, affects only Scotland or Wales respectively. The CEHR is unable, therefore, to undertake these activities to the extent that they are delegated to the Committees. The Scotland and Wales committees are not able to exercise these decision-making powers where they have been delegated to the Disability Committee under Part 5 of Schedule 1.
287. Notwithstanding the delegation of clause 14, the CEHR may provide advice or guidance on a GB-wide basis, such as, for example, through a helpline or the publication of advice leaflets.
288. Paragraph 32 requires the CEHR to prepare and publish an annual report, including in relation to its activities in Scotland and Wales, and submit it to the Secretary of State. The Secretary of State must lay the annual report before Parliament. The annual report must also be sent to the Scottish Parliament and the National Assembly for Wales.
289. Paragraphs 33 and 34 allow the CEHR to continue proceedings irrespective of whether there is an outstanding vacancy (including the Chair) or whether there is an irregularity in respect of an appointment on either the CEHR Board or a committee.
Schedule 1, Part 3 : Money
290. Paragraphs 35 to 37 set out the remuneration arrangements for the CEHR Board, staff members or members of an advisory to decision-making committee. It also allows for the CEHR to be listed as part of the Superannuation Act 1972 in respect of pension arrangements for staff.
291. Paragraph 38 requires the Secretary of State to determine and provide appropriate funds to enable the CEHR to perform its functions.
292. Paragraph 39 allows the CEHR to charge for a service provided under clause 14 (Information, advice etc), or clause 29 (Conciliation).
293. Paragraph 40 and 41 requires the CEHR to prepare a statement of accounts on an annual basis which is examined, certified and reported on by the Comptroller and Auditor General. The first financial year to which Paragraph 40 relates must be from the coming into force of Section 1 until the following 31st March, but relating to a period of not less than 12 months.
Schedule 1, Part 4 - Status &c
294. Paragraph 42 establishes the status of the CEHR in relation to the Crown. It confirms that Commissioners and employees of the CEHR are not employed as civil servants.
295. This Part of Schedule 1 also amends a number of Acts of Parliament to ensure the CEHR is subject to their enactments. These provisions ensure that the CEHR is subject to the requirements of the Parliamentary Commissioner Act 1967, relating to departments subject to investigation; the House of Commons Disqualification Act 1975 and similar provisions barring members of the House of Commons, Northern Ireland Assembly, and National Assembly for Wales from being members of the CEHR, including as an investigating commissioner or member of a decision-making committee. It also subjects the CEHR to the provisions of the Public Records Act 1958 and the Freedom of Information Act 2000.
Schedule 1, Part 5 - Disability Committee
296. Paragraph 49 requires the CEHR to establish a Disability Committee before assuming responsibility for the equality and diversity duties set out in clause 8 and the disability duties set out in clause 10 of the Bill.
297. Paragraph 50 sets out the requirements for the number of members of the Disability Committee. Members of the Committee may be Commissioners, staff or other non-Commissioners by virtue of paragraph 12(2) of Schedule 1 to the Bill. Paragraphs 50(b) and (c) require that the Chairman and at least half of the members of the Disability Committee are or have been disabled people. This reflects a requirement in the DRCA concerning the composition of the DRC. By virtue of paragraph 50(c) of Schedule 1 in conjunction with paragraph 12(3) of Schedule 1 to the Bill, the Chairman of the Committee must be a Commissioner who is or has been a disabled person. The Chairman need not be the same Commissioner appointed to give effect to the requirement in paragraph 2(2)(a) of Schedule 1. "Disabled person" for the purposes of paragraph 50 bears the same meaning as in clause 10(2) of the Bill.
298. Paragraph 51 sets a period of two to five years as the term of office of members of the Disability Committee, subject to the possibility of reappointment, or dismissal, or in accordance with paragraph 51(c) lapsing of the appointment of members of the Committee when the Committee is dissolved following the process set out in paragraphs 57-62.
299. Paragraph 52 sets out the functions of the CEHR which are delegated to the Disability Committee. These are the duties under clause 8 of the Bill (equality and diversity) in so far as they relate to "disability matters", and duties under clause 10 of the Bill (disability duties). "Disability matters" is defined in paragraph 52(3) as matters provided for under Parts 1, 3, 4 and 5 of the DDA and the CEHR's disability duties under clause 10 of the Bill. Part 1 of the DDA sets out the meaning of "disabled person" and "disability"; Part 3 of the DDA sets out the duties on providers of goods, facilities, services and premises to the public, public authorities exercising their functions; and associations providing benefits, facilities and services to applicants for membership, members, associates and guests; Part 4 of the DDA sets out the duties in relation to education; and Part 5 of the DDA provides powers for the Secretary of State to make accessibility regulations in respect of taxis, public service vehicles, and rail vehicles. Matters provided for in Part 2 of the DDA, which deals with discrimination and harassment in the employment field will not be delegated to the Disability Committee. The Committee's remit with regard to Part 2 of the DDA is set out in paragraphs 53 and 54.
300. In carrying out the duties of the CEHR under clauses 8 and 10, or in relation to disability matters generally (as defined in paragraph 52(3)), the Disability Committee may exercise any of the powers listed in paragraph 52(1)(a).
301. For example, the Disability Committee will be able to issue Codes of Practice (delegated by virtue of paragraph 52(1)(a)(ii)) which deal with disability discrimination in the provision of goods, facilities, services and premises or education, as provided for in Parts 3 and 4 of the DDA respectively, as the latter fall within the definition of "disability matters" in paragraph 52(3) of Schedule 1.
302. Paragraph 52(2) allows the CEHR to exercise the powers and fulfil the duties delegated to the Disability Committee, where they relate partly to disability and partly to other matters. This would allow the CEHR, for instance, to establish a GB-wide helpline offering advice on all of the equality enactments listed at clause 35. However, the CEHR is required under paragraph 53 to consult the Committee before doing so.
303. Paragraph 53 imposes a duty on the CEHR to consult the Disability Committee before taking action on matters affecting disabled people, in particular where such action affects Part 2 of the DDA (employment field). This means that, for example, if the CEHR were to prepare a Code of Practice relating to discrimination in employment across all equality strands, it would be required to involve the Disability Committee by seeking their advice and expertise on all areas of the proposed code affecting disabled people, such as reasonable adjustments for disabled people in the workplace. Or, for example, if drawing up a programme of investigations and inquiries which would impact on disabled people, the CEHR would be required to consult the Disability Committee prior to doing so.
304. Paragraph 54 imposes a corresponding duty on the Disability Committee to provide advice to the CEHR on the exercise of any of the CEHR's functions affecting disabled people.
305. Paragraph 55 requires the CEHR to allocate a sufficient share of its total allocated resources (which will include staff and funding to the Disability Committee to enable it to carry out its delegated functions effectively.
306. Paragraphs 57-59 make provision for a mandatory review of the Disability Committee to assess whether it is expedient for the Committee to continue. The review is to take place after the Disability Committee has been operating for five years
307. Paragraph 58 lists the persons who are excluded from participating in the review, to ensure that the review will be carried out independently of the CEHR.
308. Paragraph 59 requires the CEHR to ensure that the review involves a consultation with interested parties, and that a report of the findings of the review is submitted to the CEHR and published. The report must include a recommendation by the reviewing body on how long the committee should continue in existence.
309. Paragraph 60 requires the CEHR, after receiving the report, to make a recommendation to the Secretary of State on how long the Disability Committee should continue in existence.
310. Paragraph 61 requires the Secretary of State to make an order specifying the date on which the dissolution of the Disability Committee will take effect, which may be after a period of continuation. In accordance with clause 41(3)(c) such an order is subject to the negative resolution procedure.
311. Paragraph 62 provides that an order made by the Secretary of State under paragraph 59 may also make provision in relation to the Committee's conduct of its business prior to dissolution. For example, this may include provision about activities the Committee must complete before it is dissolved. The order may also make provision as to how the CEHR will carry out functions that were previously delegated to the Committee before its dissolution.
312. Paragraph 63 clarifies that paragraphs 12-15 of Schedule 1 to the Bill allow the CEHR to create a subsequent committee with responsibility for disability issues, or to delegate to another committee any functions that were originally delegated to the Disability Committee, after the Disability Committee has been dissolved.
313. Paragraph 64 ensures that the Disability Committee can only be dissolved following the review process set out in paragraphs 57 to 62.
Schedule 2: Inquiries, Investigations and Assessments
314. Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, adjournments, reports and recommendations and effects of recommendations relating to inquiries, investigations and assessments.
315. Paragraph 10 allows the CEHR to give a notice to any person, in the course of an inquiry, investigation or assessment.
316. Paragraph 11 provides that the notice may require a person to provide the CEHR with information or documents in his possession or to give oral evidence to it.
317. Paragraph 12 provides the grounds on which a person served with a notice to provide information can apply to the court to overturn the notice.
318. Paragraph 13 enables the CEHR to apply for a county court order requiring a person to provide the information required.
319. Paragraph 14 creates three summary criminal offences: one of failing to provide, information requested under paragraph 10 or ordered by a court under paragraph 13; secondly, falsifying such information and thirdly, making a false statement in oral evidence to the CEHR, following a request to give oral evidence under paragraph 10. A person who is guilty of an offence under paragraph 14 shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
320. Paragraph 16 sets out the requirements on the CEHR to prepare and publish a report of an inquiry, investigation or assessment.
Schedule 3: Amendments consequential on Part 1
321 Schedule 3 makes a number of consequential amendments to legislation. These include substituting the CEHR for the existing equality commissions where they have rights or obligations under existing legislation: for example, the CRE's right to be consulted in respect of codes made by the Secretary of State under the Asylum and Immigration Act 1996.
Schedule 4: Repeals .
322. Schedule 4 lists the repeals made by the Bill.
PUBLIC SECTOR FINANICAL COST AND PUBLIC SECTOR MANPOWER EFFECTS
323. The Bill will involve new expenditure from public funds. There will be the costs associated with establishing the CEHR as a new body and the costs of making the transition into the new body from the EOC, CRE and DRC, which the CEHR will succeed and which will be dissolved by this Bill.
324. Estimated non-recurring set-up costs include:
325. The creation of the CEHR to provide institutional support beyond the current three equality strands (gender, race and disability) to the three new strands (religion & belief, sexual orientation and age) and to human rights will lead to the CEHR's running costs budget being greater than the sum of the budgets of the EOC, CRE and the DRC. For the funding year, 2002-2003, the current Commissions received combined funding of around £43 million. The estimate of the annual budget for the CEHR when it is fully operational, which will not be before 2007 and could be later, is £70 million. It is expected that a significant proportion of this extra funding would be used to pay for increased staff levels, expected to be of the order of 20-50% over the total staff numbers of existing commission (the current Commissions employ just over 500 staff between them). The exact number of new staff will be a matter for the Chair and CEHR when appointed to determine and will be influenced by the balance of the new body's activities and organisational structure and priorities. Additional staff for the new CEHR will be recruited in open and fair competition.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
326. Individual regulatory impact assessments have been conducted for the establishment of the CEHR; the introduction of legislation making it unlawful to discriminate in the provision of goods, facilities and services, premises, education, and the exercise of public functions on the grounds of religion or belief; and the introduction of a public sector duty to promote gender equality, as the impact of these three areas of policy are not dependent upon each other. It is difficult to quantify the majority of benefits associated with these three proposals as they all address inequalities and unfairness in today's society, rather than address explicit financial concerns. Below is a summary of the impact of these three measures.
327. The extra costs in public spending associated with the establishment of the CEHR are discussed in the preceding section, but as the CEHR will enforce existing legislation, there are no extra regulatory requirements placed on businesses or the public sector as a result of its creation While many of the effects of the establishment of the CEHR are not amenable to quantitative analysis (although these explored in the RIA), the impact of having one body providing advice and information for employers as opposed to the current three (and some Government departments) has been estimated as providing an overall cost-saving for employers of between £2.7 and £3.4 million per year.
328. The gender duty will apply only to the public sector and therefore there will be costs across a range of public authorities (one-off implementation costs have been estimated at £9.2 - £13.9 million, and on-going costs have been estimated at £1.7 - 2.8 million per year). The general duty of the gender duty will apply to those bodies undertaking functions of a definite public nature, and therefore may apply to certain functions of a small number of private bodies if they are of an express public nature. Gender equality requirements on private contractors would most likely be clearly set out in the contractual arrangements with the public body concerned (one-off implementation costs have been estimated at £0.8-£1.7 million and on-going costs have been estimated at £1.2-£2.4 million per year).
329. The majority of costs stemming from the introduction of legislation making it unlawful to discriminate in the provision of goods, facilities and services on the grounds of religion or belief and the discharge of public functions, are associated with the dissemination and understanding of guidance (estimated at around £8.76 million for the private sector and £0.89 million for the public sector).
|© Parliamentary copyright 2005||Prepared: 8 March 2005|