Equality Bill [HL]

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Equality Bill [HL]

Equality Bill [HL]
Part 4 — Public Functions
46

(3)
The regulations may, in particular—
(a)
make provision of a kind similar to Part 2 of this Act;
(b)
define discrimination;
(c)
define harassment;
(d)
make provision for enforcement (which may, in particular, include
5
provision—
(i)
creating a criminal offence of a kind similar to, and with the
same maximum penalties as, an offence created by an
enactment relating to discrimination or equality;
(ii)
about validity and revision of contracts;
10
(iii)
about discriminatory advertisements;
(iv)
about instructing or causing discrimination or harassment);
(e)
provide for exceptions (whether or not of a kind similar to those
provided for by Part 2 of this Act or any other enactment relating to
discrimination or equality);
15
(f)
make provision which applies generally or only in specified cases or
circumstances;
(g)
make different provision for different cases or circumstances;
(h)
include incidental or consequential provision (which may include
provision amending an enactment);
20
(i)
include transitional provision.
(4)
The regulations—
(a)
shall be made by statutory instrument, and
(b)
may not be made unless a draft has been laid before and approved by
resolution of each House of Parliament.
25
(5)
In subsection (3)(h) “enactment” includes an enactment in or under an Act of
the Scottish Parliament.
Part 4
Public Functions
Sex discrimination
30
81
Prohibition of discrimination
(1)
In the Sex Discrimination Act 1975 (c. 65) the following shall be inserted at the
beginning of Part III (discrimination in non-employment fields)—
“21A
Public authorities
(1)
It is unlawful for a public authority exercising a function to do any act
35
which constitutes—
(a)
discrimination, or
(b)
harassment within the meaning of section 4A(1) and (2), (5) and
(6).
(2)
In subsection (1)—
40
(a)
“public authority” includes any person who has functions of a
public nature (subject to subsections (3) and (4)), and
(b)
“function” means function of a public nature.

Equality Bill [HL]
Part 4 — Public Functions
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(3)
The prohibition in subsection (1) shall not apply to—
(a)
the House of Commons,
(b)
the House of Lords,
(c)
the Security Service,
(d)
the Secret Intelligence Service,
5
(e)
the Government Communications Headquarters, or
(f)
a part of the armed forces of the Crown which is, in accordance
with a requirement of the Secretary of State, assisting the
Government Communications Headquarters.
(4)
The prohibition in subsection (1) shall not apply to the functions and
10
actions listed in the Table of Exceptions in subsection (9) (but nothing
in that Table permits anything which is prohibited by virtue of any
Community law relating to discrimination).
(5)
The Secretary of State may by order amend the Table of Exceptions.
(6)
In an action under section 66 in respect of a contravention of this
15
section—
(a)
the court shall not grant an injunction or interdict unless
satisfied that it will not prejudice criminal proceedings or a
criminal investigation, and
(b)
the court shall grant any application to stay or sist the section 66
20
proceedings on the grounds of prejudice to criminal
proceedings or to a criminal investigation, unless satisfied that
the proceedings or investigation will not be prejudiced.
(7)
Section 74(2)(b) shall not apply in relation to a respondent’s reply, or a
failure to reply, to a question in connection with an alleged
25
contravention of this section—
(a)
if the respondent reasonably asserts that to have replied
differently or at all might have prejudiced criminal proceedings
or a criminal investigation,
(b)
if the respondent reasonably asserts that to have replied
30
differently or at all would have revealed the reason for not
instituting or not continuing criminal proceedings,
(c)
where the reply is of a kind specified for the purposes of this
paragraph by order of the Secretary of State,
(d)
where the reply is given in circumstances specified for the
35
purposes of this paragraph by order of the Secretary of State, or
(e)
where the failure occurs in circumstances specified for the
purposes of this paragraph by order of the Secretary of State.
(8)
In this section “criminal investigation” means—
(a)
an investigation into the commission of an alleged offence, and
40
(b)
a decision whether to institute criminal proceedings.
(9)
The following is the Table of Exceptions referred to in subsection (4).

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Part 4 — Public Functions
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Legislation

1
Preparing, making, or considering—

(a)
an Act of Parliament,

(b)
a Bill for an Act of Parliament,

(c)
an Act of the Scottish Parliament, or

5

(d)
a Bill for an Act of the Scottish Parliament.

2
Preparing, making, confirming, approving, or considering legislation

made or to be made—

(a)
by a Minister of the Crown,

(b)
by Order in Council,

10

(c)
by the Scottish Ministers or any member of the Scottish

Executive,

(d)
by the National Assembly for Wales, or

(e)
by or by virtue of a Measure of the General Synod of the

Church of England.

15

3
Action which is necessary, or in so far as it is necessary, for the

purpose of complying with—

(a)
an Act of Parliament,

(b)
an Act of the Scottish Parliament, or

(c)
legislation of a kind described in Item 2.

20

The courts, &c.

4
A judicial function (whether in connection with a court or a tribunal).

5
Anything done on behalf of or on the instructions of a person

exercising a judicial function (whether in connection with a court or a

tribunal).

25

6
A decision not to institute or continue criminal proceedings.

7
Anything done for the purpose of reaching, or in pursuance of, a

decision not to institute or continue criminal proceedings.

Separate services, &c.

8
The provision of a service for one sex only where only persons of that

30

sex require the service.

9
The provision of separate services for each sex where a joint service

would or might be less effective.

10
The provision of a service for one sex only where—

(a)
the service is also provided jointly for both sexes, and

35

(b)
if the service were provided only jointly it would or might be

insufficiently effective.

Equality Bill [HL]
Part 4 — Public Functions
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11
The provision of a service for one sex only where—

(a)
if the service were provided for both sexes jointly it would or

might be less effective, and

(b)
the extent to which the service is required by the other sex

makes it not reasonably practicable to provide separate

5

services for that sex.

12
The provision of separate services for each sex in different ways or to

different extents where—

(a)
if the service were provided for both sexes jointly it would or

might be less effective, and

10

(b)
the extent to which the service is required by one sex makes it

not reasonably practicable to provide the service for that sex in

the same way or to the same extent as for the other sex.

13
Action taken for the purpose of assisting one sex to overcome—

(a)
a disadvantage (as compared with the other sex), or

15

(b)
the effects of discrimination.

Miscellaneous

14
The exercise of a function of the Charity Commissioners for England

and Wales or the holder of the Office of the Scottish Charity Regulator

in relation to an instrument in relation to which section 43 applies.

20

15
Action which is unlawful by virtue of another provision of this Act.

16
Action which would be unlawful by virtue of another provision of this

Act but for an express exception.”

(2)
In section 17(5) of the Sex Discrimination Act 1975 (c. 65) (police) for “by virtue
of subsection (1)” substitute “by virtue of subsection (1) or (1A)”.
25
(3)
In section 81 of that Act (orders)—
(a)
in subsection (2) after “sections” insert “21A,”, and
(b)
after subsection (2) insert—
“(2A)
An order under section 21A(5) may not be made unless—
(a)
the Secretary of State has consulted the Commission,
30
and
(b)
a draft has been laid before and approved by resolution
of each House of Parliament.”
(4)
In section 85 of that Act (Crown application) after subsection (3) insert—
“(3A)
Section 21A binds the Crown.”
35
82
General duty to promote equality, &c.
(1)
In the Sex Discrimination Act 1975 the following shall be inserted at the
beginning of Part VIII (supplemental)—
“76A
Public authorities: general statutory duty
(1)
A public authority shall in carrying out its functions have due regard to
40
the need—

Equality Bill [HL]
Part 4 — Public Functions
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(a)
to eliminate unlawful discrimination and harassment, and
(b)
to promote equality of opportunity between men and women.
(2)
In subsection (1)—
(a)
“public authority” includes any person who has functions of a
public nature (subject to subsections (3) and (4)),
5
(b)
“functions” means functions of a public nature, and
(c)
the reference to unlawful discrimination shall be treated as
including a reference to contravention of terms of contracts
having effect in accordance with an equality clause within the
meaning of section 1 of the Equal Pay Act 1970 (c. 41).
10
(3)
The duty in subsection (1) shall not apply to—
(a)
the House of Commons,
(b)
the House of Lords,
(c)
the Scottish Parliament,
(d)
the General Synod of the Church of England,
15
(e)
the Security Service,
(f)
the Secret Intelligence Service,
(g)
the Government Communications Headquarters,
(h)
a part of the armed forces of the Crown which is, in accordance
with a requirement of the Secretary of State, assisting the
20
Government Communications Headquarters, or
(i)
a person specified for the purpose of this paragraph by order of
the Secretary of State (and a person may be specified generally
or only in respect of specified functions).
(4)
The duty in subsection (1) shall not apply to the exercise of—
25
(a)
a function in connection with proceedings in the House of
Commons or the House of Lords,
(b)
a function in connection with proceedings in the Scottish
Parliament (other than a function of the Scottish Parliamentary
Corporate Body),
30
(c)
a judicial function (whether in connection with a court or a
tribunal),
(d)
a function exercised on behalf of or on the instructions of a
person exercising a judicial function (whether in connection
with a court or a tribunal), or
35
(e)
a function specified for the purpose of this paragraph by order
of the Secretary of State.
(5)
Subsection (1)(b) is without prejudice to the effect of any exception to
or limitation of the law about sex discrimination.
(6)
A failure in respect of performance of the duty under subsection (1)
40
does not confer a cause of action at private law.”
(2)
In section 81 of the Sex Discrimination Act 1975 (c. 65) (orders) after subsection
(2A) (inserted by section 81 above) insert—
“(2B)
An order under section 76A(3)(i) or (4)(e) may not be made unless the
Secretary of State has consulted the Commission.”
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(3)
In section 85 of that Act (Crown application) after subsection (3A) (inserted by

Equality Bill [HL]
Part 4 — Public Functions
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section 81 above) insert—
“(3B)
Section 76A binds the Crown.”
83
Specific duties
(1)
In the Sex Discrimination Act 1975 (c. 65) the following shall be inserted after
section 76A (inserted by section 82 above)—
5
“76B
Specific duties
(1)
The Secretary of State may by order impose on a person to whom the
duty in section 76A(1) applies, or in so far as that duty applies to a
person, a duty which the Secretary of State thinks will ensure better
performance of the duty under section 76A(1).
10
(2)
Before making an order under subsection (1) the Secretary of State shall
consult the Commission.
(3)
The Secretary of State—
(a)
must consult the National Assembly for Wales before making
an order under subsection (1) in respect of a person exercising
15
functions in relation to Wales, and
(b)
may not, without the consent of the National Assembly for
Wales, make an order under subsection (1) in respect of a
person all of whose functions are public functions in relation to
Wales.
20
(4)
A failure in respect of performance of a duty imposed under subsection
(1) does not confer a cause of action at private law.
76C
Specific duties: Scotland
(1)
Section 76B(1) shall not apply in relation to a person who is a relevant
Scottish authority or a cross-border authority.
25
(2)
The Secretary of State may by order impose on a cross-border authority
to whom the duty under section 76A(1) applies, or in so far as that duty
applies to the cross-border authority, a duty which the Secretary of
State thinks will ensure better performance of the duty under section
76A(1), to the extent that the cross-border authority’s functions are not
30
Scottish functions.
(3)
The Scottish Ministers may by order impose on a relevant Scottish
authority to whom the duty under section 76A(1) applies, or in so far as
that duty applies to the relevant Scottish authority, a duty which the
Scottish Ministers think will ensure better performance of the duty
35
under section 76A(1).
(4)
The Scottish Ministers may by order impose on a cross-border
authority to whom the duty under section 76A(1) applies, or in so far as
that duty applies to the cross-border authority, a duty which the
Scottish Ministers think will ensure better performance of the duty
40
under section 76A(1), to the extent that the cross-border authority’s
functions are Scottish functions.
(5)
Before making an order under any of subsections (2) to (4) the person
making the order shall consult the Commission.

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(6)
Before making an order under subsection (2) the Secretary of State shall
consult the Scottish Ministers.
(7)
Before making an order under subsection (4) the Scottish Ministers
shall consult the Secretary of State.
(8)
A failure in respect of performance of a duty imposed under this
5
section does not confer a cause of action at private law.
(9)
In this section—
“relevant Scottish authority” means—
(a)
a member of the Scottish Executive or a junior Scottish
Minister,
10
(b)
the Registrar General of Births, Deaths and Marriages
for Scotland, the Keeper of the Registers of Scotland or
the Keeper of the Records of Scotland,
(c)
an office of a description specified in an Order in
Council under section 126(8)(b) of the Scotland Act 1998
15
(c. 46) (other non-ministerial offices in the Scottish
Administration), or
(d)
a public body, public office or holder of a public office—
(i)
which is not a cross-border authority or the
Scottish Parliamentary Corporate Body,
20
(ii)
whose functions are exercisable only in or as
regards Scotland, and
(iii)
some at least of whose functions do not relate to
reserved matters (within the meaning of the
Scotland Act 1998),
25
“cross-border authority” means a cross-border public authority
within the meaning given by section 88(5) of the Scotland Act
1998, and
“Scottish functions” means functions which are exercisable in or as
regards Scotland and which do not relate to reserved matters
30
(within the meaning of the Scotland Act 1998).
76D
Specific duties: enforcement
(1)
This section applies where the Commission thinks that a person has
failed to comply with a duty imposed under section 76B or 76C.
(2)
The Commission may give the person a notice requiring him—
35
(a)
to comply with the duty, and
(b)
to give the Commission, within the period of 28 days beginning
with the date on which he receives the notice, written
information of steps taken for the purpose of complying with
the duty.
40
(3)
A notice under this section may require a person to give the
Commission information required by the Commission for the purposes
of assessing compliance with the duty; in which case the notice shall
specify—
(a)
the period within which the information is to be given (which
45
shall begin with the date on which the notice is received and
shall not exceed three months), and
(b)
the manner and form in which the information is to be given.