Equality Bill [HL]

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Equality Bill [HL]

Equality Bill [HL]
Part 2 — Discrimination on grounds of religion or belief
39

(b)
proceedings under the Immigration Acts,
(c)
proceedings under the Special Immigration Appeals Commission Act
1997 (c. 68), or
(d)
in Scotland, the exercise of the jurisdiction of the Court of Session to
entertain an application for reduction or suspension of an order or
5
determination or otherwise to consider the validity of an order or
determination, or to require reasons for an order or determination to be
stated.
65
Claim of unlawful action
(1)
A claim that a person has done anything that is unlawful by virtue of this Part
10
may be brought in a county court (in England and Wales) or in the sheriff court
(in Scotland) by way of proceedings in tort (or reparation) for breach of
statutory duty.
(2)
Proceedings in England and Wales alleging that any of the following bodies
has acted unlawfully by virtue of section 48 or 50 may not be brought unless
15
the claimant has given written notice to the Secretary of State; and those bodies
are—
(a)
a local education authority, and
(b)
the responsible body of an educational establishment listed in the Table
in section 48.
20
(3)
Proceedings in Scotland alleging that any of the following bodies has acted
unlawfully by virtue of section 48 or 50 may not be brought unless the pursuer
has given written notice to the Scottish Ministers; and those bodies are—
(a)
an education authority, and
(b)
the responsible body of an educational establishment listed in the Table
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in section 48.
(4)
In subsection (1) the reference to a claim that a person has done an unlawful act
includes a reference to a claim that a person is to be treated by virtue of this Part
as having done an unlawful act.
(5)
In proceedings under this section, if the claimant (or pursuer) proves facts from
30
which the court could conclude, in the absence of a reasonable alternative
explanation, that an act which is unlawful by virtue of this Part has been
committed, the court shall assume that the act was unlawful unless the
respondent (or defender) proves that it was not.
66
Immigration
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(1)
Proceedings may not be brought under section 65 alleging that a person has
acted unlawfully by virtue of section 51 if the question of the lawfulness of the
act could be raised (and has not been raised) in immigration proceedings
(disregarding the possibility of proceedings brought out of time with
permission).
40
(2)
If in immigration proceedings a court or tribunal has found that an act was
unlawful by virtue of section 51, a court hearing proceedings under section 65
shall accept that finding.
(3)
In this section “immigration proceedings” means proceedings under or by
virtue of—
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(a)
the Immigration Acts, or

Equality Bill [HL]
Part 2 — Discrimination on grounds of religion or belief
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(b)
the Special Immigration Appeals Commission Act 1997 (c. 68).
67
Remedies
(1)
This section applies to proceedings under section 65.
(2)
A court may, in addition to any remedy available to it in proceedings for tort,
grant any remedy that the High Court could grant in proceedings for judicial
5
review.
(3)
A court may not award damages in proceedings in respect of an act that is
unlawful by virtue of section 44(3) if the respondent proves that there was no
intention to treat the claimant unfavourably on grounds of religion or belief.
(4)
A court may award damages by way of compensation for injury to feelings
10
(whether or not other damages are also awarded).
(5)
In the application of this section to proceedings in Scotland—
(a)
a reference to the High Court shall be taken as a reference to the Court
of Session,
(b)
a reference to tort shall be taken as a reference to reparation,
15
(c)
a reference to the respondent shall be taken as a reference to the
defender, and
(d)
a reference to the claimant shall be taken as a reference to the pursuer.
(6)
This section is subject to section 51(5).
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Timing
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(1)
Proceedings under section 65 may be brought only—
(a)
within the period of six months beginning with the date of the act (or
last act) to which the proceedings relate, or
(b)
with the permission of the court in which the proceedings are brought.
(2)
In relation to immigration proceedings within the meaning of section 66, the
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period specified in subsection (1)(a) above shall begin with the first date on
which proceedings under section 65 may be brought.
69
Information
(1)
In this section—
(a)
a reference to a claimant is a reference to a person who has brought
30
proceedings under this Part,
(b)
a reference to a potential claimant is a reference to a person who—
(i)
thinks he may have been the subject of an act that is unlawful by
virtue of this Part, and
(ii)
wishes to consider whether to bring proceedings under this
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Part, and
(c)
a person questioned by a potential claimant for the purpose of
considering whether to bring proceedings is referred to as a potential
respondent.
(2)
The Secretary of State shall by order prescribe—
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Equality Bill [HL]
Part 2 — Discrimination on grounds of religion or belief
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(a)
forms by which a claimant or potential claimant may question the
respondent or a potential respondent about the reasons for an action or
about any matter that is or may be relevant, and
(b)
forms by which a respondent or potential respondent may reply (if he
wishes).
5
(3)
A claimant’s or potential claimant’s questions, and a respondent or potential
respondent’s replies, (in each case whether or not put by a prescribed form)
shall be admissible as evidence in proceedings in respect of the act to which the
questions relate if (and only if) the questions are put—
(a)
within the period of six months beginning with the date of the act (or
10
last act) to which they relate, and
(b)
in such manner as the Secretary of State may prescribe by order.
(4)
A court may draw an inference from—
(a)
a failure to reply to a claimant’s or potential claimant’s questions
(whether or not put by a prescribed form) within the period of eight
15
weeks beginning with the date of receipt, or
(b)
an evasive or equivocal reply to a claimant’s or potential claimant’s
questions (whether or not put by a prescribed form).
(5)
The Secretary of State may by order amend subsection (3)(a) so as to substitute
a new period for that specified.
20
(6)
In the application of this section to Scotland—
(a)
a reference to a claimant or potential claimant shall be taken as a
reference to a pursuer or potential pursuer, and
(b)
a reference to a respondent or potential respondent shall be taken as a
reference to a defender or potential defender.
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(7)
An order under this section—
(a)
shall be made by statutory instrument, and
(b)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(8)
This section is subject to section 51(6).
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70
National security
(1)
Rules of court may make provision for enabling a county court or sheriff court
in which a claim is brought under section 65, where the court considers it
expedient in the interests of national security—
(a)
to exclude from all or part of the proceedings—
35
(i)
the claimant;
(ii)
the claimant’s representatives;
(iii)
any assessors;
(b)
to permit a claimant or representative who has been excluded to make
a statement to the court before the commencement of the proceedings,
40
or the part of the proceedings, from which he is excluded;
(c)
to take steps to keep secret all or part of the reasons for the court’s
decision in the proceedings.
(2)
The Attorney General or, in Scotland, the Advocate General for Scotland, may
appoint a person to represent the interests of a claimant in, or in any part of,
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Equality Bill [HL]
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proceedings from which the claimant or his representatives are excluded by
virtue of subsection (1).
(3)
A person may be appointed under subsection (2) only—
(a)
in relation to proceedings in England and Wales, if he has a general
qualification (within the meaning of section 71 of the Courts and Legal
5
Services Act 1990 (c. 41)), or
(b)
in relation to proceedings in Scotland, if he is—
(i)
an advocate, or
(ii)
qualified to practice as a solicitor in Scotland.
(4)
A person appointed under subsection (2) shall not be responsible to the person
10
whose interests he is appointed to represent.
71
Validity and revision of contracts
(1)
A term of a contract is void where—
(a)
its inclusion renders the making of the contract unlawful by virtue of
this Part,
15
(b)
it is included in furtherance of an act which is unlawful by virtue of this
Part, or
(c)
it provides for the doing of an act which would be unlawful by virtue
of this Part.
(2)
Subsection (1) does not apply to a term the inclusion of which constitutes, or is
20
in furtherance of, or provides for, unlawful discrimination against a party to
the contract; but the term shall be unenforceable against that party.
(3)
A term in a contract which purports to exclude or limit a provision of this Part
is unenforceable by a person in whose favour the term would operate apart
from this subsection.
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(4)
Subsection (3) does not apply to a contract settling a claim under section 65.
(5)
On the application of a person interested in a contract to which subsection (1)
applies, a county court or sheriff court may make an order for removing or
modifying a term made unenforceable by that subsection; but an order shall
not be made unless all persons affected—
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(a)
have been given notice of the application (except where notice is
dispensed with in accordance with rules of court), and
(b)
have been afforded an opportunity to make representations to the
court.
(6)
An order under subsection (5) may include provision in respect of a period
35
before the making of the order.
General
72
Aiding unlawful acts
(1)
It is unlawful knowingly to help another person (whether or not as his
employee or agent) to do anything which is unlawful under this Part.
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Equality Bill [HL]
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(2)
A person commits an offence if he knowingly or recklessly makes a false
statement, in connection with assistance sought from another, that a proposed
act is not unlawful under this Part.
(3)
A person guilty of an offence under subsection (2) shall be liable on summary
conviction to a fine not exceeding level 5 on the standard scale.
5
73
Employers’ and principals’ liability
(1)
Anything done by a person in the course of his employment shall be treated for
the purposes of this Part as done by the employer as well as by the person.
(2)
Anything done by a person as agent for another shall be treated for the
purposes of this Part as done by the principal as well as by the agent.
10
(3)
It is immaterial for the purposes of this section whether an employer or
principal knows about or approves of an act.
(4)
In proceedings under this Part against a person in respect of an act alleged to
have been done by his employee it shall be a defence for the employer to
provide that he took such steps as were reasonably practicable to prevent the
15
employee—
(a)
from doing the act, or
(b)
from doing acts of that kind in the course of his employment.
(5)
Subsections (1) and (2) shall not apply to the commission of an offence under
section 53.
20
74
Police, &c.
(1)
This section applies to—
(a)
a constable who is a member of a police force maintained under the
Police Act 1996 (c. 16) or the Police (Scotland) Act 1967 (c. 77),
(b)
a special constable appointed for a police area in accordance with either
25
of those Acts, and
(c)
a person appointed as a police cadet in accordance with either of those
Acts.
(2)
A person to whom this section applies shall be treated for the purposes of this
Part as the employee of his chief officer of police; and anything done by the
30
person in the performance or purported performance of his functions shall be
treated as done in the course of that employment.
(3)
There shall be paid out of the police fund—
(a)
compensation, costs or expenses awarded against a chief officer of
police in proceedings brought against him under this Part;
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(b)
costs or expenses incurred by a chief officer of police in proceedings
brought against him under this Part so far as not recovered in the
proceedings;
(c)
sums required by a chief officer of police for the settlement of a claim
made against him under this Part if the settlement is approved by the
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police authority.
(4)
A police authority may pay out of the police fund—
(a)
damages or costs awarded in proceedings under this Part against a
person under the direction and control of the chief officer of police;

Equality Bill [HL]
Part 2 — Discrimination on grounds of religion or belief
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(b)
costs incurred and not recovered by such a person in such proceedings;
(c)
sums required in connection with the settlement of a claim that has or
might have given rise to such proceedings.
(5)
In section 56(4) of the Serious Organised Crime and Police Act 2005 (c. 15)
(application of discrimination legislation to seconded staff) after paragraph (f)
5
insert—

“; and
(g)
section 73 of the Equality Act 2005.”
75
Indirect provision of benefit, &c.
A reference in this Part to providing a service, facility or benefit of any kind
10
includes a reference to facilitating access to the service, facility or benefit.
76
Employment Equality Regulations
For regulation 2(1) of the Employment Equality (Religion or Belief)
Regulations 2003 (S.I. 2003/1660) (definition of “religion or belief”)
substitute—
15
“(1)
In these Regulations—
(a)
“religion” means any religion,
(b)
“belief” means any religious or philosophical belief,
(c)
a reference to religion includes a reference to lack of religion,
and
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(d)
a reference to belief includes a reference to lack of belief.”
77
Crown application
(1)
Section 51 binds the Crown.
(2)
The remainder of this Part applies to an act done on behalf of the Crown as it
applies to an act done by a private person.
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(3)
For the purposes of subsection (2) an act is done on behalf of the Crown if (and
only if) done—
(a)
by or on behalf of a Minister of the Crown,
(b)
by or on behalf of the Scottish Ministers,
(c)
by a government department,
30
(d)
by a body established by an enactment (including an enactment in or
under an Act of the Scottish Parliament) acting on behalf of the Crown,
(e)
by or on behalf of the holder of an office established by an enactment
(including an enactment in or under an Act of the Scottish Parliament)
acting on behalf of the Crown, or
35
(f)
by or on behalf of an office-holder in the Scottish Administration
(within the meaning of section 126(7) of the Scotland Act 1998 (c. 46)).
(4)
The provisions of Parts II to IV of the Crown Proceedings Act 1947 shall apply
to proceedings against the Crown under this Part as they apply to proceedings
in England and Wales which by virtue of section 23 of that Act are treated for
40
the purposes of Part II of that Act as civil proceedings by or against the Crown;
but section 20 of that Act (removal of proceedings from county court to High
Court) shall not apply to proceedings under this Part.

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Part 3 — Discrimination on grounds of sexual orientation
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(5)
The provisions of Part V of the Crown Proceedings Act 1947 shall apply to
proceedings against the Crown under this Part as they apply to proceedings in
Scotland which by virtue of the said Part are treated as civil proceedings by or
against the Crown; but the proviso to section 44 of that Act (removal of
proceedings from the sheriff court to the Court of Session) shall not apply to
5
proceedings under this Part.
78
Interpretation
(1)
In this Part “charity”—
(a)
in relation to England and Wales, has the meaning given by the
Charities Act 2005, and
10
(b)
in relation to Scotland, means a body entered in the Scottish Charity
Register.
(2)
In this Part—
(a)
a reference to action includes a reference to deliberate omission, and
(b)
a reference to refusal includes a reference to deliberate omission.
15
79
Territorial application
(1)
This Part applies in relation to anything done in Great Britain.
(2)
This Part also applies to the provision of—
(a)
facilities for travel on a British ship, a British hovercraft or a British
aircraft, and
20
(b)
benefits, facilities or services provided on a British ship, a British
hovercraft or a British aircraft.
(3)
Section 51, in so far as it relates to granting entry clearance (within the meaning
of the Immigration Acts), applies to anything done whether inside or outside
the United Kingdom.
25
(4)
In this section—
“British aircraft” means an aircraft registered in Great Britain,
“British hovercraft” means a hovercraft registered in Great Britain, and
“British ship” means a ship which is—
(a)
registered in Great Britain, or
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(b)
owned by or used for purposes of the Crown.
(5)
This section shall not make it unlawful to do anything in or over a country
other than the United Kingdom, or in or over the territorial waters of a country
other than the United Kingdom, for the purpose of complying with a law of the
country.
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Part 3
Discrimination on grounds of sexual orientation
80
Regulations
(1)
The Secretary of State may by regulations make provision about discrimination
or harassment on grounds of sexual orientation.
40
(2)
In subsection (1) “sexual orientation” has the meaning given by section 35.